Garcia v. Co-operators General Insurance Company, 2022 CanLII 92716

Citation: Garcia v. Co-operators General Insurance Company, 2022 ONLAT 20-002871/AABS

Licence Appeal Tribunal File Number: 20-002871/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:

Julian Garcia

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Aurora Mancuso, Counsel

For the Respondent:

Patrick Baker, Counsel

HEARD:

By way of written submissions

BACKGROUND

1J.G. was injured in an accident on December 28, 2017, and sought benefits from the respondent, Co-operators, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹ J.G. applied for medical benefits that were denied by Co-operators because it determined that his injuries were predominantly minor and subject to the Minor Injury Guideline (the “MIG”). J.G. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are as follows:

a. Are J.G.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?

3If J.G.’s injuries are not predominantly minor, then I must determine the following:

a. Is the medical benefit in the amount of $1,170.00 for physiotherapy services, recommended by Michael Hofstatter Physiotherapy in an OCF-18 dated May 14, 2019, reasonable and necessary?

b. Is the medical benefit in the amount of $1,040.00 for physiotherapy services, submitted in an expense claim form (OCF-6) dated June 4, 2019, reasonable and necessary?

c. Is the medical benefit in the amount of $460.20 for physiotherapy services, recommended by Mackenzie Med Centre in an OCF-18 dated March 21, 2018, reasonable and necessary?

4Are the medical benefits recommended by All Health Medical Centre reasonable and necessary as follows:

a. $2,520.00 for physiatry servicesOCF-18 dated March 4, 2019?

b. $2,260.00 for a chronic pain assessment in an OCF-18 submitted on September 22, 2020?

c. $4,946.00 for a psychiatric assessment in an OCF-18 submitted June 10, 2020?

d. $7,463.89 for chronic pain treatment in an OCF-18 submitted February 9, 2021?

e. $750.00 for orthotic devices in an OCF-18 submitted February 9, 2021?

f. Is J.G. entitled to interest on any overdue payment of benefits?

FINDINGS

5J.G. is entitled to the June 2020 (psychiatric assessment) and October 2020 (chronic pain assessment) OCF-18s because I find the respondent did not comply with s. 38(11) of the Schedule. Interest is payable in accordance with s. 51 of the Schedule.

6J.G. has not demonstrated that his accident-related injuries and impairments justify removal from the MIG. He is not entitled to the remaining disputed treatment plans, and no interest is payable on those treatment plans.

ANALYSIS

Applicability of the MIG

7Section 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.”

8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus is on the insured to demonstrate on a balance of probabilities that the injuries fall outside of the MIG.

9I find that J.G. has not met his burden of proving that his accident-related impairments require treatment beyond the MIG because he sustained minor physical injuries. Further, I do not find that he is removed as a result of a psychological impairment or chronic pain.

Did J.G. suffer physical injuries that warrants removal from the MIG?

10J.G. submits that his physical injuries warrant treatment beyond the MIG. In this regard, he relies on the clinical notes and records of his family physician, Dr. Cruz and a Disability Certificate (“OCF-3”) from chiropractor, Angel Russi.

11In response, Co-operators submits that J.G. sustained predominantly minor injuries as a result of the accident and has not met his evidentiary burden. Co-operators submits that J.G.’s accident-related injuries are captured within the definition of ‘minor’ under the MIG. Further, Co-operators argues that J.G.’s medical evidence supports that he suffered predominantly minor injuries. To this end, it points to the initial diagnosis from Dr. Cruz of lumbar strain, left shoulder tendinitis, and rotator cuff tear. Subsequent visits note diagnoses of upper back and neck strain and a 50% improvement in symptoms.

12On the evidence, I find that J.G. has not demonstrated that his accident-related injuries warrant removal from the MIG. I note that after the July 6, 2018 visit to Dr. Cruz where J.G. noted a 50% improvement, he did not return to Dr. Cruz until May 14, 2019. At this visit, Dr. Cruz noted full range of motion in the shoulders and that J.G. may consider a referral to a chronic pain clinic, which J.G. indicated he “will think about it for now.”

13The physical injuries listed in the OCF-3 are captured within the definition of a minor injury. I note that in the OCF-3, Angel Russi noted an anticipated duration of disability to be 9-12 weeks. Further, the physical injuries listed in the OCF-3 do not fall outside the definition of predominantly minor injuries under s. 3(1) of the Schedule. While a February 1, 2018 left shoulder ultrasound revealed a partial tear, the partial tear is captured within the definition of “minor injury”.

14J.G. has failed to establish that he suffered anything other than predominantly minor physical injuries as a result of the accident.

Did J.G. suffer psychological impairments that justify removal from the MIG?

15As noted above, an insured may be removed from the MIG if they sustain a psychological impairment as a result of the accident, on the basis that psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule. In support of his position, J.G. relies on the December 20, 2020 chronic pain assessment report of pain specialist, Dr. Robertus,

16I disagree with J.G.’s position and find that the evidence does not support his position. Aside from the diagnosis of Dr. Robertus of depression, anxiety and post-traumatic symptom disorder, these diagnoses are not supported by the records of J.G.’s primary care physician, Dr. Cruz. What was reported to Dr. Robertus is inconsistent with the entirety of Dr. Cruz’s records. There are no complaints to Dr. Cruz of any psychologically based impairments, no referrals to a specialist, nor any prescriptions for psychopharmaceutical treatment.

17In response, Co-operators relies on the s. 44 insurer examination (IE) report of psychiatrist Dr. Hines, who was unable to identify any diagnosable impairments as a result of the accident. J.G. reported that he goes to the gym 3-4 times a week, engaging in stretching, weight training and cardio equipment. J.G. went on to advise Dr. Hines that he had not experienced any emotional issues as a result of the accident.

18I prefer the report of Dr. Hines over that of Dr. Robertus for several reasons. First, Dr. Robertus reserved making an opinion on any psychological diagnosis and deferred the finding to a psychiatrist, which Dr. Hines is. Second, J.G. denied experiencing any emotional issues as a result of the accident. Lastly, both Dr. Hines’ opinion and J.G.’s self-reporting to Dr. Hines are in line with the records of Dr. Cruz, all of which fail to support that J.G. sustained a psychological impairment as a result of the accident.

19For these reasons, I find it difficult to conclude that J.G. suffered any psychological impairment that would warrant removal from the MIG.

Does J.G. suffer from chronic pain as a result of the accident?

20J.G. submits that he has developed a chronic pain condition as a result of his accident-related injuries. Despite his claim, he did not provide any submissions that speak to any of the six criteria outlined in the AMA Guides² that supports his chronic pain complaint as a result of the accident. Specifically, there is no evidence that he:

a. Was prescribed medication as a result of the accident, therefore failing to establish that he abuses or uses medication beyond the recommended duration;

b. Has an increased dependence on health care providers. The infrequent visits to Dr. Cruz, and the limited records of accident-specific pain complaints to Dr. Cruz do not support this;

c. Has experienced avoidant behaviour or de-conditioning. This is not supported by the fact that he continues to go the gym and engages in weight training on a frequent basis;

d. Experienced social withdrawal. This is not supported on the fact that he has returned to his studies after the accident, participated in co-op placements, obtained a degree and secured full-time employment in automotive sales, which requires a significant level of social engagement;

e. Failed to achieve pre-accident function. This is contradicted by his reports that he continues to go fishing, filming and regularly engages in other activities of daily living; and

f. Suffered psychological impairment, specifically reporting to Dr. Hines that he had no emotional issues as a result of the accident.

21The AMA Guides require an applicant to meet a minimum of three of the above six criteria. Although he relies on the chronic pain report of Dr. Robertus, I place little weight on that evidence, as discussed earlier. The medical evidence is not persuasive in showing that J.G. suffers any significant functional limitations as a result of accident-related chronic pain.

22For the above reasons, I find that J.G. has not demonstrated that his accident-related injuries warrant removal from or treatment beyond the MIG as a result of a chronic pain condition.

Are the treatment plans reasonable and necessary?

23I have determined that J.G.’s accident-related injuries are properly captured within the MIG, it is my understanding the limits of the MIG have been exhausted. Consequently, an analysis of whether the disputed treatment plans are reasonable and necessary is not required. As no benefits are overdue, no interest is payable under s. 51 of the Schedule. However, J.G. argues that a few of Co-operators’ denials were non-compliant with s. 38(8) which I will address now.

DISCUSSION

Applicability of s. 38(8) and 38(11)

24Section 38(8) sets out that within 10 business days of receipt of a treatment plan, insurers are required to provide an insured with a notice, identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and any other reasons why it considers the goods and services to be not reasonable and necessary. Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8).

25J.G. submits that Co-operators failed to comply with s. 38(8) in its denial of the OCF-18s for the psychiatric assessment in the amount of $4,946.00, the chronic pain assessment in the amount of $2,260.00, and chronic pain treatment in the amount of $7,463.89. J.G. argues that Co-operators did not specifically indicate that the MIG applies in the denial letters, dated June 24, 2020, October 6, 2020, and February 24, 2021.The consequence according to 38(11) of the Schedule is that the benefits are payable.

26Co-operators argues that its February 24, 2021 denial is in compliance with s. 38(8). In its letter, it clearly notes that there is no compelling evidence that J.G. sustained an injury outside the definition of a minor injury. It further notes that J.G. is approved up to the MIG limit. I find that the February 24, 2021 denial letter met the requirements under s. 38(8) in identifying the goods, services, assessments and examinations described in the OCF-18. I also find the denial letter identified what Co-operators does not agree to pay for with medical and other reasons, and why it finds the recommended goods and services not reasonable and necessary, as required under s. 38(8).

27Regarding the June 24, 2020 (psychiatric assessment) and October 6, 2020 (chronic pain assessment) denial letters, Co-operators does not deny that those letters do not specifically note whether the MIG applies.

28I find that where an insurer believes the MIG applies, then it must always comply with s. 38(9) in order to comply with s. 38(8). My reasons for this finding are as follows.

29First, the SABS is consumer protection legislation which is to be interpreted liberally while restrictions are to be interpreted narrowly. As a result of a power imbalance between the insurer and the insured person, the legislature has decided to require the insurer to comply strictly with the Schedule and impose significant consequences on the insurer for noncompliance.

30Secondly, I read s. 38(9) as adding to the notice requirement in s. 38(8) where the insurer believes the MIG applies, therefore a compliant s. 38(8) notice must always include mention of the MIG in such circumstances. In terms of s. 38(10), I read that to mean along with (my emphasis) the mandatory citing of the MIG, the insurer can (my emphasis) include in their s. 38(8) notice that they require the insured person to be examined under s. 44. In other words, as part of its good faith obligation to adjust the claim, the insurer can take the initial position that it thinks they are minor injuries. Where the health practitioner who signed the disputed OCF-18 has the opinion that the injuries aren’t minor (see s. 38(3)(c)(i)) and any other information in the OCF-18 or accompanying it, the insurer can (and should) be open-minded about the possibility that the insured person’s injuries are not (or no longer) minor injuries. By comparison, if the disputed OCF-18 is lacking information, then the insurer can opt not to require a s. 44 examination. The ability of the insurer to request a s. 44 examination as part of a s. 38(10) does not relieve the insurer from citing the MIG as required by ss. 38(8) and (9).

31Thirdly, s. 38(11)1. contains relevant consequences for failing to cite the MIG in compliance with ss. 38(8) and (9). Since s. 38(9) requires citation of the MIG in a proper s. 38(8) notice when the insurer thinks the MIG applies, failing to cite the MIG has consequences under s. 38(11)(1), that the insurer cannot take the position that the MIG applies to that treatment plan. As a further point, the consequences of s. 38(11) are not mutually exclusive: both would apply.

32Failure by an insurer to properly satisfy any of these requirements trigger the “shall pay” requirement under s. 38(11). Co-operators’ June and October 2020 denials fail to comply with s. 38(8), therefore, it “shall pay” for those OCF-18s.

33Accordingly, J.G. is entitled to payment for the June and October 2020 OCF-18s, and interest is payable in accordance with s. 51.

CONCLUSION

34J.G. is entitled to payment for the June 2020 and October 2020 OCF-18s due to Co-operators failure to comply with the requirements under s. 38. Interest is payable in accordance with s. 51.

35J.G. has not met his burden to demonstrate that treatment beyond the MIG is required. He is not entitled to the remaining treatment plans in dispute. No interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.