Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-001499/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:
Roan Lawson
Applicant
and
Desjardins General Insurance Group
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Dharshika Pathmanathan, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1The applicant was involved in an automobile accident on August 20, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule, - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES
2The following issues are in dispute:
a. Are the applicant’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 Minor Injury Guideline (“MIG”)?
b. Is the applicant entitled to $3,806.14 ($4,256.14 less $450.00 approved) for physiotherapy services proposed by PhysioFix and Fitness in a treatment plan (“OCF-18”) dated January 17, 2020?
c. Is the applicant entitled to $4,333.13 for physiotherapy services proposed by PhysioFix and Fitness in an OCF-18 dated November 13, 2020?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
a. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG; and
b. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to payment for the treatment plans in dispute, plus interest in accordance with s.51 of the Schedule.
PRELIMINARY ISSUE
4As part of its responding submissions, the respondent requests that certain evidence submitted by the applicant be excluded as evidence for this hearing. The respondent submits that the clinical notes and records (“CNRs”) of Dr. Debssou and diagnostic imaging of the applicant’s left shoulder, were received for the first time as part of the applicant’s written submissions. This was despite the Case Conference Report and Order dated July 22, 2021 (“CCRO”) setting a production deadline of January 7, 2022. The respondent argues that this sudden disclosure of key documents is prejudicial and impeded its ability to make full submissions. It submits that pursuant to Rule 9.4 of the Tribunal’s Common Rules of Practice and Procedure, the applicant should not be able to rely upon this evidence.
5The applicant does not dispute that he failed to provide the CNRs and diagnostic imaging prior to the written hearing. He submits that this was an inadvertent error and that as soon as the mistake was discovered, he contacted the respondent and offered to consent to a motion to alter the timelines for this written hearing. The applicant contends that given the issues in dispute, this evidence is relevant and necessary.
6I find that the probative value of the CNRs of Dr. Debssou and the diagnostic imaging outweigh the prejudice suffered by the respondent, and will consider the evidence as part of the applicant’s submissions for this hearing. While I agree with the respondent that the applicant did not meet the production timeline set out in the CCRO, such medical evidence is relevant to the substantive issues in dispute. Under s. 15(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S.22, documents relevant to the issues in dispute are admissible as evidence. However, this delayed production will go to the weight to be given to the evidence.
7Further, as the respondent provided submissions on the CNRs of Dr. Debssou and the diagnostic imaging, despite the late delivery, the prejudice to the respondent has been minimized. In the event that I am incorrect and the applicant’s failure to provide the documents prior to the hearing did prejudice the respondent, the appropriate remedy would be for an extension of time for the respondent to file its materials, not the exclusion of the documents. The respondent did not make a request for additional time to serve its submissions, despite the applicant’s consent to a motion to extend timelines.
ANALYSIS
Minor Injury Guideline
8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
9Section 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 or if they provide evidence demonstrating that their injuries are not included in the minor injury definition. In all cases, the burden of proof lies with the applicant.
10The applicant submits that he should be removed from the MIG due to his ongoing accident-related injuries to his neck, shoulders and knee, and a pre-existing back injury which was exacerbated by the accident. To establish his impairments, the applicant relies on diagnostic imaging which shows supraspinatus tendinosis of the left shoulder. He also submits CNRs from his family physicians Dr. Debssou and Dr. Wassef, which note his ongoing impairments and a 1998 injury, where the applicant suffered a wedge compression spinal fracture after being assaulted. Finally, the applicant submits treatment records from his physiotherapy clinic, which the applicant asserts note his ongoing pain complaints.
11I find that the applicant has not led sufficient evidence to demonstrate that his accident-related impairments warrant removal from the MIG.
12With the exception of the left shoulder injury, the applicant has not provided any medical evidence that he suffered from a non-minor injury to his right shoulder, neck and left knee. The applicant has not submitted any emergency room records, diagnostic imaging or an opinion from a medical practitioner that he sustained anything outside of strain and sprain type injuries as a result of the accident.
13I agree with the respondent that the CNRs of Dr. Wassef are largely illegible, and as such, of limited assistance. The CNRs of Dr. Debssou similarly do not indicate any diagnoses or reports of accident-related injury to the neck or left knee. Further, there is only one CNR entry with respect to a right shoulder injury or pain, and the entry is from more than one year post-accident. However, Dr. Debssou noted that this right shoulder pain started after the applicant tripped and fell while mowing the lawn and as such, I find that it is not attributable to the accident.
14The diagnostic imaging submitted by the applicant does reveal supraspinatus tendinosis of the left shoulder. However, I agree with the respondent’s submissions that the applicant has not established that this injury was caused by the accident.
15Post-accident, the applicant sought physiotherapy treatment for a number of physical symptoms, including shoulder pain. However, no diagnostic imaging was ordered at the time of the accident, and the CNRs of Dr. Debssou do not indicate medical visits for left shoulder pain, until December 2019, when the applicant fell onto his left side, fracturing two ribs. At that point, imaging of the left shoulder was also ordered, which revealed the supraspinatus tendinosis. The applicant does not direct me to any evidence that Dr. Debssou attributed this shoulder injury to the accident, rather than the December 2019 fall. As such, I find that the applicant has not established that his accident-related physical impairments fall outside the definition of a minor injury under s. 3(1).
16The applicant further argues that his pre-existing back injury warrants removal from the MIG. While I acknowledge that the medical record establishes that the applicant suffered a spinal wedge compression fracture in 1998, the applicant has not led sufficient evidence to establish that this prior injury would prevent maximal medical recovery under the MIG.
17I agree with the respondent’s submissions that the OHIP record, which goes back to 2014, does not indicate that the applicant reported issues with back pain in the five years prior to the accident. I also note the respondent’s submissions that the two OCF-18s in dispute did not identify any pre-existing medical conditions and that the majority of the applicant’s current pain complaints are for his lower back, while the wedge compression fracture was in the mid-back.
18In addition, while the applicant has established that he suffered from a back injury documented by medical professionals prior to the subject accident, he has not led any evidence with respect to the second requirement of s. 18(2) of the Schedule. Namely, the applicant does not point to any medical evidence or an opinion of a medical practitioner that draws the conclusion that the applicant’s pre-existing condition prevents him from achieving maximal recovery under the MIG.
19Accordingly, I find that the applicant has not demonstrated, on a balance of probabilities, that his accident-related impairments warrant removal from the MIG.
Sufficiency of denials – section 38(8)
20Although I have found the applicant to be within the MIG and the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted in this matter, the applicant further submitted that the respondent’s denials of the disputed treatment plans failed to comply with s. 38(8) of the Schedule. Without a valid denial, the applicant may have access to funding for the OCF-18s in dispute, pursuant to the remedy under s. 38(11).
21Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
22If an insurer fails to comply with its obligations under s. 38(8), s. 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and must pay for all incurred goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day until such time that it gives a valid denial.
OCF-18 dated January 17, 2020 in the amount of $3,806.14
23The applicant submits that there was never a valid denial of the OCF-18 dated January 17, 2020. He argues that the respondent’s denial notice was sent well outside the ten day window and more than one year after the OCF-18 was submitted. The applicant further contends that even once the notice was sent, it was deficient in that it did not properly refer to the medical and any other reasons for the denial. Finally, the applicant acknowledges that only $450.00 of the OCF-18 was incurred, but requests that the full amount of the treatment plan be deemed incurred pursuant to s. 3(8) of the Schedule.
24The respondent does not dispute that its notice was not sent to the applicant within ten days. It contends that due to an administrative error, a response letter was not generated or properly sent to the applicant after the response to the treatment plan was updated in the HCAI system. However, it submits that once it became aware of the error, it rectified the mistake and sent a proper denial on April 21, 2021. The respondent further submits that it paid the applicant the full $450.00 of expenses that were incurred during the period of non-compliance and that the remaining amount should not be deemed incurred.
25I find that, pursuant to s. 38(8), the respondent did not provide proper notice to the applicant within ten business days after it received the OCF-18. As such, it is prohibited from taking the position that the MIG applies to this specific treatment plan and it must pay for any treatment expenses incurred starting on the 11th business day after it received the treatment plan and ending on the day it gave proper notice.
26I also find that the April 21, 2021 correspondence did not cure the non-compliance, as it relied on the MIG to deny the treatment plan. The respondent argues that its notice was proper, as the reason provided for the denial was not only MIG, but also that there was a lack of medical evidence and that the applicant failed to establish that the plan was reasonable and necessary. However, from my review of the notice, the respondent cites the MIG as the reason for the denial. Although it does also request updated CNRs from the applicant’s family physician, these notes were requested to consider “whether you have sustained an impairment that is not predominantly a minor injury…” In my view, this indicates that the MIG is the reason why the treatment plan was denied.
27No other correspondence from the respondent was submitted with respect to the treatment plan in dispute. As a result of my findings of the respondent’s non-compliance with s. 38(8) of the Schedule, I find that the January 17, 2020 OCF-18 is payable as the respondent no longer has the opportunity to issue a proper denial notice, as a decision has been rendered regarding this benefit.
28The applicant acknowledges that only $450.00 of the treatment plan was incurred, but requests that the outstanding balance of $3,806.14 be deemed incurred. However, I note that pursuant to the Divisional Court Decision of Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, a treatment plan can be payable, even if not incurred. In Suarez, the Divisional Court found that in cases where an insurer did not provide a compliant denial in accordance with section 38(8) of the Schedule, or subsequently rectify its deficient notice, insurers are required to pay for treatment that was not properly denied, despite not being incurred. The Court further held that an insurer cannot side-step the consequences of s.38(11) by issuing a compliant notice after a hearing, stating, “ (p)ermitting an insurer to issue a compliant denial following a LAT hearing would effectively render s. 38(11) of the Schedule meaningless and the result of the hearing moot.” In the matter at hand, a compliant notice was not provided prior to the hearing.
29This can be distinguished from the Divisional Court decision of Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000, where the court held that treatment must be incurred, in cases where a deficient notice was subsequently corrected by a proper notice. In such situations, only those goods and services that are incurred during a shall-pay period by the applicant are payable by an insurer. In the matter at hand, as the insurer did not rectify its deficient notice, I find that Divisional Court’s reasoning in Suarez is applicable.
30As such, I find the outstanding balance of the January 17, 2020 OCF-18 to be payable and need not consider whether it must be deemed incurred.
OCF-18 dated November 13, 2020 in the amount of $4,333.13
31Upon a review of the respondent’s denial letter dated November 28, 2020, I find that the respondent’s stated reasons fall short of its obligation to provide clear and specific medical and other reasons under s.38(8) of the Schedule. I agree with the applicant’s submissions that the respondent’s reasons were not sufficient enough to allow an unsophisticated person to make a decision to either accept or dispute the decision.
32Although the respondent references the MIG, and the fact that the applicant’s injuries are “minor”, the respondent does not include specific details about the applicant’s medical condition or even mention what his minor injuries were. There are no references made to what documents the respondent reviewed in coming to its determination or what documents the respondent further required from the applicant. I find that this correspondence is boilerplate and does not meet the minimum requirements of s. 38(8).
33The respondent disputes the applicant’s submissions that it did not list what medical information it still required from the applicant. The respondent contends that its denial letter indicated that the applicant could provide “additional medical information” and invited the applicant to discuss his claim further. However, I agree with the applicant’s submissions that this language is vague and lacking specificity. As cited by the applicant, in D.S. v. Travelers Insurance, 2019 CanLII 94018 (ON LAT), the Tribunal held that specific information should be listed as to what was still required. I note that the respondent’s other April 21, 2021 denial letter, referenced above, specifically requested the CNRs of the applicant’s family physician. Such detail was lacking in the denial letter dated November 28, 2020.
34As such, I find that the respondent failed to provide medical and other reasons under s. 38(8) of the Schedule. As a result, the consequences set out in s. 38(11) are triggered and the OCF-18 dated November 13, 2020 is payable.
ORDER
35For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 MIG treatment limit;
ii. The applicant is entitled to payment for the two treatment plans in dispute, plus interest in accordance with s.51 of the Schedule.
Released: February 17, 2023
Ulana Pahuta Adjudicator