Citation and Parties

Citation: Fulcher v. Optimum Insurance Company, 2022 ONLAT 20-009018/AABS Licence Appeal Tribunal File Number: 20-009018/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:

Martha Fulcher Applicant

and

Optimum Insurance Company Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Bruce Cook, Counsel For the Respondent: Amanda Lennox, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Martha Fulcher ("applicant") was involved in an automobile accident on May 10, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)("Schedule").¹ The applicant was denied certain benefits by Optimum Insurance Company ("respondent") and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

PRELIMINARY ISSUE

2In her reply submissions, the applicant raised the issue of the length of the respondent's submissions. The applicant submits that the respondent exceeded the page limit mandated in the Case Conference Report and Order dated February 24, 2021 (CCRO). As the CCRO stipulated that the maximum number of pages for submissions was 10, the applicant requests that the Tribunal deem the 11th page of the respondent's submissions as inadmissible.

3The applicant did not address how she was prejudiced by the respondent exceeding the page limit.

4It is evident that the respondent exceeded the page limit. The parties agreed at the case conference that the page limit for initial submissions is 10 pages. Moreover, the CCRO explicitly stated that the hearing adjudicator may not consider submissions which exceed the stipulated page limits.

5While the parties should always strive to adhere to the Tribunal's procedural directions, I note that the respondent has not exceeded the page limit in a significant amount. There are only two additional paragraphs on the 11th page, one of which is only one sentence long. Further, the applicant has not provided any submissions as to any prejudice that she sustained as a result of the respondent exceeding the page limit. When considering procedural fairness and any potential prejudice to the parties, I find that the respondent would be unfairly prejudiced if portions of its submissions were otherwise excluded in this matter. As a result, I will consider the 11th page of the respondent's submissions in this hearing.

ISSUES

6The issues in dispute in this hearing are:

1. Is the applicant entitled to a medical benefit in the amount of $472.01 ($1,397.01 less $925.00 approved) for physiotherapy services, recommended in a treatment plan (OCF-18) dated August 1, 2018?
2. Is the applicant entitled to a medical benefit in the amount of $1,791.51 for physiotherapy services, recommended in an OCF-18 dated September 6, 2018?
3. Is the applicant entitled to interest on any overdue payment of benefits, in accordance with section 51 of the Schedule?
4. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

7The applicant is entitled to the unapproved balance of the OCF-18 for physiotherapy services, dated August 1, 2018.

8The applicant is entitled to the OCF-18 for physiotherapy services, dated September 6, 2018.

9The applicant is entitled to interest on the incurred goods and services pursuant to section 51 of the Schedule.

10The applicant is not entitled to an award.

BACKGROUND

11On May 10, 2018, the applicant was the seat-belted driver of a vehicle which was struck on the passenger side of the car. Police and ambulance attended at the scene and the applicant was transported to Hamilton Heath Sciences Centre. She was discharged upon assessment.

12A week later, the applicant attended at her family physician, Dr. Katica Sumanac's office with complaints of pain in her right shoulder, right side of the neck, right breast and right knee. The applicant also reported anxiety and panic attacks in the car. Dr. Sumanac prescribed physiotherapy, massage therapy and over the counter medication or Tylenol.

13The applicant was initially treated for soft-tissue injuries within the Minor Injury Guideline² ("MIG") and began receiving physical treatment with Precision Physiotherapy on May 22, 2018 which continued until September 26, 2018, when the MIG limits were reached.

14The applicant was subsequently found to have suffered from a psychological injury and a diagnosis of major depressive disorder, moderate, recurrent, was confirmed in the insurer examination (IE) report of Dr. Friesen, psychologist. As a result, the applicant was removed from the MIG, as noted in correspondence from the respondent to the applicant, dated December 2, 2020.

15The respondent takes the position that while the applicant has been taken out of the MIG for her psychological impairments, her physical injuries remain predominantly minor in nature and as such do not justify treatment beyond the MIG. In the alternative, the respondent submits that the proposed treatment is not reasonable and necessary.

ENTITLEMENT TO THE DISPUTED TREATMENT PLANS

Do the Applicant's Physical Injuries fall within the MIG?

16The respondent submits that the applicant's entitlement to medical benefits for physical treatment falls within the MIG limits, even though she had been approved for treatment outside of the MIG with respect to her psychological impairments. Essentially, the respondent is arguing that the MIG limits apply separately for psychological services and physical therapy benefits. The respondent cites Tribunal decisions of J.B. v. Aviva³ and Applicant v. Aviva Insurance Company⁴, which found that even when an applicant was removed from the MIG due to a psychological diagnosis, the physical injuries were still found to be minor and were not found to require treatment beyond the MIG limits.

17The applicant disputes this analysis and submits that once an insured person is removed from the MIG, the $3,500.00 limit no longer applies and the only remaining issue is whether the treatment plan is reasonable and necessary. The applicant relied on Tribunal decisions 17-005791 v. Aviva Insurance Canada⁵ and HWG v. Dominion of Canada General Insurance Company (Travelers)⁶ to support her claim.

18I find that the respondent's position that an applicant can be held to the MIG limits for physical injuries even after removal from the MIG on psychological grounds, is not supported by a reading of section 18 of the Schedule. I also note that while previous Tribunal decisions may be instructive, they are not binding upon me.

19Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG. In addition, certain accident-related medical impairments (e.g. a fracture, a diagnosis of chronic pain, or a psychological impairment) can remove an individual from the MIG.

20The respondent agrees that the applicant was diagnosed with a psychological impairment, which removed the applicant from the MIG⁷, as the prescribed definition of "minor injury" does not include psychological impairments.

21As such, I find that the respondent cannot rely on the $3,500.00 MIG limit as a ground for denying the physiotherapy treatments claimed.

22The classification of minor injuries in section 18 of the Schedule is for the primary purpose of determining the monetary limit an insured person can receive, once the appropriate individual benefit test is met. Pursuant to section 18(3) of the Schedule, once the applicant is no longer classified as meeting the definition of "minor injuries" the applicant has access to increased funding, up to $65,000.00, for medical and rehabilitation benefits.

23Section 18 of the Schedule does not differentiate between the reasons as to why someone was removed from the MIG. As a result, once an insured is removed from the MIG, the $3,500.00 MIG limit cannot continue to be used as a ground for denying medical benefits. Rather, the appropriate test to be applied at that point, is whether the proposed treatment is reasonable and necessary.

Are the Proposed Treatment Plans Reasonable and Necessary?

24Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

25The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

26The applicant submitted two OCF-18s for physiotherapy services with Precision Physiotherapy. The OCF-18 dated August 1, 2018 was partially approved up to the MIG limit, leaving an outstanding balance of $472.01⁸. The second OCF-18 dated September 6, 2018, was denied in full, on the basis that the MIG limits had been exhausted⁹. Both OCF-18s listed the goals of treatment as being pain reduction, increase in strength, increased range of motion, return to activities of normal living and return to pre-accident work.

27The applicant submits that the two OCF-18s are reasonable and necessary, as she suffered numerous physical impairments as a result of the accident, including headaches, pain in her shoulder, neck, back, knees and ankle. In support of this claim, the applicant relies on the clinical notes and records of her family physician Dr. Sumanac. Those records indicate the applicant reported injuries a week after the accident, which led Dr. Sumanac to prescribe physiotherapy and massage therapy¹⁰. The applicant continued to report various pain complaints to Dr. Sumanac in May, June and July 2018. The applicant further relies on the treatment records of Precision Physiotherapy indicating that the applicant made frequent complaints of pain, dizziness throughout May to September 2018 while receiving physiotherapy treatment¹¹.

28The applicant submits the respondent insurer's examination (IE) assessor Dr. Noel Kerin, general practitioner, recommended in his IE assessment report dated July 27, 2018, that the applicant continue with physical therapy for an additional three months¹². Finally the applicant argues that she has continued to suffer from physical pain even more than two years after the accident, and relies on her reports of pain to her psychotherapist Khatereh Razavi¹³ and physiotherapist, Ms. Akanksha Saswadker¹⁴, in support of this claim.

29The respondent submits that the applicant has not led sufficient evidence to establish that the proposed treatment is reasonable and necessary. The respondent argues that the applicant's physical injuries were considered minor and that she was only removed from the MIG due to her psychological injuries and not her physical ones. The respondent relies on the Insurer's Examination ("IE") report of Dr. Kerin, who found that the applicant sustained only sprains and strains of her cervical spine and mid back, both of which were resolving in July 2018¹⁵. In addition, the respondent asserts that the IE functional abilities evaluation and job demands analysis of Dr. Dennis Liu, chiropractor, determined that the applicant suffered only soft-tissue injuries as a result of the accident that appeared to be mild in nature and noted that the applicant had already reported a 75% improvement of her physical impairments by July 31, 2018¹⁶. The respondent further submitted that the applicant had returned to work full-time in September, 2018 and has not provided any diagnostic imaging that would confirm that she sustained injuries outside of soft tissue strains and sprains.

30The respondent asserts that although the applicant reported pain to her psychological assessors around the time of her removal from the MIG in December 2020, the applicant has not been referred to a pain specialist nor required further treatment at a pain clinic in the intervening two years and that there were large gaps of time where the applicant was not reporting any pain to her family physician. The respondent also argues that there is no evidence that the applicant's pain is affecting her functionality.

31Upon review of the submissions and the medical evidence, I find that the applicant has met her evidentiary onus to demonstrate that the two OCF-18s in dispute are reasonable and necessary.

32The CNRs of the applicant's family physician, Dr. Sumanac, indicate that the applicant was reporting pain in her shoulder, neck, knees and back, for approximately six months post-accident¹⁷. Dr. Sumanac recommended physiotherapy and massage immediately after the accident. The two treatment plans in dispute were submitted in August and September 2018, and the CNRs of Dr. Sumanac indicate that the applicant had continued to report pain throughout this period, and even afterwards, in November 2018. The reports of ongoing pain were further corroborated by the treatment records from Precision Physiotherapy.

33Although I agree with the respondent that the applicant has not submitted diagnostic imaging or medical evidence to indicate that she had sustained injuries beyond strains and sprains, and that the respondent's IE assessors found that she had sustained only minor injuries, I do find it persuasive that the respondent's own IE assessor, Dr. Kerin, had recommended a further three month course of physiotherapy.

34In a report dated July 27, 2018, while Dr. Kerin found that the applicant sustained only minor injuries, he also recommended that the applicant continue with physical therapy such as TENS, deep heat, massage and movement exercises for an additional three month period¹⁸. Dr. Kerin felt that this limited amount of additional physiotherapy would continue with the applicant's rehabilitation and support her return to work in September 2018.

35Soon after this assessment, the applicant submitted the OCF-18 dated August 1, 2018 for 12 one hour physiotherapy sessions. The respondent partially approved this OCF-18 in the amount of $925.00, up to the MIG limit. On September 6, 2018, the applicant submitted a second OCF-18 for 12 additional physiotherapy sessions and six massage therapy sessions. This OCF-18 was denied in full due to the applicant having exhausted her MIG limit.

36I find that the additional 24 physiotherapy sessions and 6 massage therapy sessions proposed in the two OCF-18s to be reasonable and necessary. This would have enabled the applicant to attend physiotherapy sessions 1-2 times per week for a three month period, with an additional 6 massage sessions. The modalities proposed in the OCF-18s, corresponded with those suggested by the respondent's IE assessor, Dr. Kerin, namely, physical therapy such as TENS, massage and range of motion stretching exercises.

37With respect to the respondent's partial approval of the August 1, 2018 OCF-18 and complete denial of the September 6, 2018 OCF-18, the respondent indicated in its correspondence that the OCF-18s were partially approved and denied because there was no more funding left under the MIG limits¹⁹. The applicant argues that once she was removed from the MIG, in December 2020, the respondent then had an obligation to re-evaluate the reasonableness and necessity of the treatment plans previously denied, as the benefit limits had now increased.

38I appreciate the respondent's arguments that the applicant was removed from the MIG more than two years after the OCF-18s in dispute were denied, in December 2020, for psychological grounds. I also note that the respondent has raised arguments questioning the severity and chronicity of the applicant's pain complaints at the time of the removal from the MIG, namely that in the intervening two years the applicant has not been referred to a pain specialist nor required further treatment at a pain clinic, that there were large gaps of time where the applicant was not reporting any pain to her family physician, that the applicant had been working full time and that there was no objective evidence of functional impairment.

39However, the applicant submitted evidence at the time of her removal from the MIG in December 2020 which demonstrated that she was experiencing an increase in pain symptoms, such that her depression was exacerbated. This was noted by the IE assessor Dr Chris Friesen, psychologist, in his psychology assessment addendum report dated November 9, 2020²⁰.

40Most persuasively, at the time the OCF-18s were submitted (in August and September 2018), there was contemporaneous medical evidence, by way of Dr. Sumanac's CNRs and the Dr. Kerin's IE assessment, that the applicant was experiencing physical impairments from the accident and that the proposed treatment would have been helpful to in assisting the applicant to resolve her pain complaints and support her transition to work. Given that the August and September 2018 denials were solely on the basis of the MIG limits, and that the limit has since increased, I find that the applicant has adduced sufficient contemporaneous medical evidence that these OCF-18s were reasonable and necessary.

41In her submissions, the applicant argues that the Tribunal can find treatment to be reasonable and necessary and order the benefit to be payable, even if the treatment has not been incurred. In the alternative, the applicant requests that the benefit be deemed incurred, pursuant to section 3(8) of the Schedule. The respondent did not provide submissions on this issue.

42I agree that a treatment plan does not need to be incurred for it to be payable. This issue has been addressed by the Divisional Court in Aviva Insurance Company of Canada v. Danay Suarez.²¹ In this decision, Aviva had argued that the hearing adjudicator had erred in law when he ordered Aviva to pay for treatment plans when there was no evidence that the treatment had been incurred prior to the hearing. The Divisional Court held that the insurer's position was:

"untenable on any interpretative approach to the legislation. Not only does its proposed interpretation offend the remedial consumer-oriented purpose of the legislation and regulations, it also ignores the clear wording of s.280(1) of the Insurance Act which identifies entitlement and quantum as mutually exclusive issues, and s.55(1) of the Schedule which is silent on a claimant's failure to "incur" expenses as a restriction to initiating proceedings."

43Accordingly, I find that the two disputed OCF-18s can be found to be reasonable and necessary and payable, even if they have not been incurred.

AWARD

44Section 10 of Regulation 664 states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum up to 50 percent of the amount to which the person was entitled to at the time of the award together with interest.

45The applicant submits that the respondent unreasonably withheld payments at the time of the OCF-18 denials, when it ignored the opinions of the applicant's family physician, treating physiotherapist and own IE assessor that further physiotherapy would be reasonable, and then further maintained the denial for over two years. The applicant further asserts that once she was removed from the MIG the respondent should have revisited the issue, since the concurrent psychological assessment and report indicated that her pain continued to be severe. Given that the respondent's denial had been based on the MIG limits, the applicant submits that it was unreasonable to continue to deny treatment once she was removed from the MIG.

46The respondent provided limited submissions on the issue of an award, other than to state that the applicant had not provided particulars to substantiate her claim for an award, or evidence to substantiate her claim.

47Upon review of the submissions and evidence of the parties, I do not find that the respondent unreasonably withheld or delayed payments. The onus is on the applicant to establish, on a balance of probabilities, that the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate."²²

48At the time of the denial of the OCF-18s, the respondent determined, based on the IE assessments of Dr. Kerin and Dr. Liu, that the applicant's injuries were minor and subject to the limitations of the MIG. As such, I do not find that the respondent's denial was unreasonable, given its reliance on its IE assessors.

49Although I agree with the applicant that Dr. Kerin had recommended at the time an additional 3 month course of physiotherapy treatment, Dr. Kerin was also explicit in his statement that he still found the applicant's injuries to be minor. The respondent did approve the August 1, 2018 OCF-18 for $925.00 out of the requested $1,397.01, up to the MIG limit. This permitted the applicant to obtain some additional physiotherapy in preparation for her return to work. I do not find this partial denial to be unreasonable.

50However, I do agree with the applicant that once she was removed from the MIG, the respondent should have revisited its prior denial of the OCF-18s in dispute, given that they had been denied based on the MIG limits.

51In this case, the respondent appeared to adhere to its position that physical injuries could be held to be minor and subject to the MIG, even once the applicant was removed from the MIG on other grounds. While I have found that the respondent's position is inconsistent with section 18 of the Schedule, and that once out of the MIG for any reason the $3,500.00 MIG limit cannot continue to be used as a ground for denying medical benefits, I appreciate the respondent's submissions that there is case law supportive of this reasoning.

52It is well-settled that insurers are not held to a standard of perfection in their adjusting of claims and that an award is meant to act as a deterrent against bad faith conduct by an insurer - not as punishment for reaching an incorrect decision. I find that the respondent's failure to reconsider the disputed OCF-18's under the non-MIG regime was an incorrect decision but does not rise to the threshold of bad faith conduct, particularly given that it is a position that has been accepted by the Tribunal in the past.

53The applicant was removed from the MIG on psychological grounds in December 2020, more than two years after the OCF-18s for physiotherapy were denied. The applicant points to her self-reports of ongoing pain to her psychotherapists, and the IE assessment of Dr. Friesen, as compelling evidence that she required ongoing physical treatment. As a result, the applicant submits that the respondent had should have reconsidered its previous denials upon receipt of this IE assessment. However, I do not find that the psychological IE assessments and report of her psychotherapist are conclusive evidence in this regard, as both of these relied solely on the applicant's self-reports of pain.

54I note the respondent's submissions that although the applicant argues that she suffered in pain throughout the period she was held in the MIG, there is a lack of medical evidence that she had consistently complained of chronic pain to her family physician, or was prescribed pain medication or referred to a chronic pain specialist. While at the time of the denials in August and September 2018 there was objective contemporaneous evidence of physical impairment and medical recommendations both from her family physician and IE assessor for further physical therapy, this corroborating evidence was lacking in December 2020, when she was removed from the MIG.

55As such, when the applicant was removed from the MIG on psychological grounds, in December 2020, I do not find that there was overwhelming objective, medical evidence that she was suffering from a physical impairment, such that the respondent's failure to reconsider its previous denials was evidence of excessive, imprudent, stubborn, inflexible, unyielding or immoderate conduct.

56As a result, I find that while the respondent was incorrect in failing to reconsider the denials of the OCF-18s for physical therapy upon the applicant's removal from the MIG, I do not find that the applicant has adduced sufficient evidence of unreasonable withholding and delayed payment.

INTEREST

57Interest is payable on any overdue payment of benefits pursuant to section 51 of the Schedule.

58From the applicant's submissions, I infer that these amounts have not been incurred, as she has requested that I deem the expenses to have been incurred as per section 3(8) of the Schedule, such that interest would be payable. Section 3(8) stipulates that if an insurer is found to have unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may deem the expense to have been incurred.

59Since the wording of "unreasonably withheld or delayed payment" in section 3(8) is identical to the wording used in section 10 of Regulation 664 to determine an applicant's entitlement to an award, I apply the same reasoning used in determining whether the applicant was entitled to an award, to the issue of deeming an expense incurred.

60As I have previously determined that the respondent did not unreasonably withhold or delay payment, I decline to exercise my discretion under section 3(8) of the Schedule to deem the amounts payable under the OCF-18s to have been incurred.

CONCLUSION AND ORDER

61I find that the outstanding balance of the OCF-18 dated August 1, 2018 and the OCF-18 dated September 6, 2018, are reasonable and necessary for the applicant's accident-related injuries. The applicant may consume these treatment plans and the respondent is liable to pay for it once properly invoiced. If she has already consumed this treatment plan, she is entitled to payment for the incurred services.

62The applicant is entitled to interest in accordance with section 51 of the Schedule once the goods and services set out in the treatment plans listed in paragraph 61 above have been incurred and become overdue. If the applicant has already incurred these goods and services, then the applicant is entitled to interest in accordance with section 51 of the Schedule.

63The applicant is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10 as amended
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s.268.3(1.1) of the Insurance Act.
3. 3J.B. v. Aviva, 2019 CanLII 110106 (ONLAT)
4. 4Applicant v. Aviva Insurance Company, 2020 CanLII 14484 (ONLAT)
5. 517-005791 v. Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT)
6. 6HWG v. Dominion of Canada General Insurance Company (Travelers), 2020 ONLAT 18-000126/AABS
7. 7Applicant's Reply Submissions, Tab 1, Correspondence from the Respondent dated December 2, 2020
8. 8Applicant's Submissions, Tab 1, Letter from the Respondent dated August 7, 2018
9. 9Applicant's Submissions, Tab 2, Letter from the Respondent dated September 7, 2018
10. 10Applicant's Submissions, Tab 3, Clinical Notes and Records of Dr. Sumanac, entry dated May 17, 2018
11. 11Applicant's Submissions, Tab 5, Clinical Notes and Records of Precision Physiotherapy
12. 12Applicant's Submissions, Tab 7, Insurer's Examination Report of Dr. Kerin dated July 27, 2018
13. 13Applicant's Reply Submissions, Tab 5, Psychological Progress Report of Khatereh-Razavi and Sean Shahrokhia, dated March 11, 2021
14. 14Applicant's Reply Submissions, Tab 6, Letter Report of Akanksha Saswadkar from Precision Physiotherapy, dated June 24, 2021
15. 15Respondent's Submissions, Tab 5, Insurer's Examination Report of Dr. Kerin dated July 27, 2018
16. 16Respondent's Submissions, Tab 6, Insurer's Examination - Functional Abilities Evaluation by Dr. Dennis Liu, dated July 31, 2018
17. 17Applicant's Submissions, Tab 3, Clinical Notes and Records of Dr. Sumanac
18. 18Respondent's Submissions, Tab 5, Insurer's Examination Report of Dr. Kerin dated July 27, 2018
19. 19Respondent's Submissions, Tab 13 and 14, Letters from Claimspro to the Applicant dated August 7, 2018 and September 6, 2018
20. 20Respondent's Submissions, Tab 11, Insurer's Examination - Psychology Addendum Report by Dr. Friesen dated November 9, 2020
21. 21Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200
22. 2217-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration).