Leclair v. Northbridge Commercial Insurance Corporation, 2023 CanLII 13082

Citation: Leclair v. Northbridge Commercial Insurance Corporation, 2023 ONLAT 20-009732/AABS

Licence Appeal Tribunal File Number: 20-009732/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:

Liane Leclair Applicant

And

Northbridge Commercial Insurance Corporation Respondent

DECISION

ADJUDICATOR: Anita Goela

APPEARANCES:

For the Applicant: Thomas Elliot, Counsel

For the Respondent: Stacey Morrow, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on February 14, 2020, 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”).

ISSUES

2The parties participated in a motion hearing on October 13, 2021. An Order dated October 14, 2021 sets out the issues to be determined in this appeal. They are as follows:

i. Is the applicant entitled to $2,486.00 for a physiatry assessment, (as recommended in a treatment plan from Synoptic Medical Assessments, dated September 2, 2021), denied by the respondent on September 7, 2021?

ii. Is the applicant entitled to a special award pursuant to O. Reg. 664 s.10?

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

RESULT

3I find the following:

a. The applicant is entitled to the physiatry assessment.

b. The applicant is not entitled to a special award.

c. The applicant is entitled to interest as of February 8, 2022.

ANALYSIS

Reasonable and Necessary

4Section 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving that the treatment plans are reasonable and necessary.

5The applicant was involved in a significant motor vehicle accident 20 years ago. Her medical conditions include fibromyalgia, anxiety, limb pain and deformity, diabetes, gastroesophageal reflux disorder and high blood pressure and cholesterol.

6The respondent required the applicant to attend s.44 assessments for physiatry and neurology.

7Dr. Rabinovitch conducted a physiatry assessment on July 16, 2021. She diagnosed the applicant with mechanical neck pain, soft tissue injury to the bilateral shoulders, mechanical low back pain and iliotibial band friction syndrome on the left. She goes on to state that the diagnoses are not an exacerbation of a pre-existing condition and were a result of the accident. Her prognosis for the applicant’s accident-related physical pain symptoms is guarded given the chronicity and magnitude of the ongoing complaints and reported lack of improvement.

8Dr. Mendis conducted a neurology assessment on July 14, 2021. He diagnosed the applicant with concussion/mild traumatic brain injury, post-traumatic headaches of mixed type with a migrainous component and probable whiplash to the neck. He states that the applicant reported being in good health prior to the accident and would conclude that the accident is the sole cause of her diagnoses.

9My reading of the respondent’s assessors’ opinions is that they concluded that the accident caused the applicant’s impairments and that the applicant’s health status is complex.

10The applicant provided updated clinical notes and records (“CNRs”) from the applicant’s family physician on February 8, 2022 after filing her initial submissions. The CNR’s include an ultrasound image of the left shoulder and brain imaging.

11Overall, I find that the applicant’s CNR’s and the respondent’s physiatry and neurology reports support the applicant’s claim that a s. 25 physiatry assessment is reasonable and necessary. Additionally, I agree with the applicant’s submission that she was entitled to seek out a “second opinion” to the respondent’s physiatry assessment.

12The applicant submits that the respondent should have outright approved the physiatry assessment because it had completed its own. She submits that she is entitled to her own report as she is not required to agree with the medical opinion and treatment suggestions provided by the respondent’s assessor. I find that this approach is not the test in the Schedule, which requires that every treatment plan be reasonable and necessary to be payable. The determination of whether an assessment is reasonable and necessary may include weighing whether the insurer has conducted its own assessment, but I do not find that this in itself is sufficient for the s. 15 analysis.

Reasons for Denial of Applicant’s Physiatry Assessment

13The respondent denied the applicant’s s. 25 physiatry assessment on September 7, 2021. The respondent denied the assessment based on Dr. Rabinovitch’s opinion that no further assessment or facility-based therapies would be reasonable.

14Under s. 33(1)1 of the Schedule, the applicant must provide on request any information reasonably required to assist the insurer in determining his or her entitlement to a benefit. The respondent requested, among other items, CNRs from Quinte Hospital, where the applicant attended after the accident, updated CNRs from the family physician, and diagnostic imaging reports.

15I reviewed the parties’ correspondence with respect to production exchange. Other than the hospital records, which remain outstanding, the applicant provided the requested information on February 8, 2022 after her initial submissions. The applicant did not provide a reason for the delay in producing these items.

16Section 33(6) provides that the insurer is not liable to pay a benefit during any period in which the applicant fails to provide the insurer with the requested information.

17I find that the respondent was liable to pay for the physiatry assessment as of February 8, 2022, when the applicant cured their non-compliance with s.33. I find that as of February 8, 2022, the respondent had sufficient information that would provide clarity regarding the applicant’s health status. The respondent has an ongoing duty to adjust the file as new information is available.

Special Award

18Section 10¹ provides that where the Tribunal finds that an insurer has unreasonably denied or withheld benefits, the insurer’s conduct may attract a special award. In S.M. v. Unica², the Tribunal confirmed that the conduct must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.

19The adjuster’s actions were made with a rational basis and therefore they do not fall into the category of an unreasonable withholding of benefits. The adjuster relied on the opinion of its own s. 44 assessor and was waiting to receive s. 33 information that included the applicant’s attendance at the hospital on the day of the accident and updated CNR’s and diagnostic imaging. The decisions made by the adjuster do not demonstrate a pattern of conduct that is egregious or a patently obvious error in adjusting.

20I have considered whether the applicant is entitled to a special award as of February 8, 2022, when she provided the respondent with updated medical information. A special award ought not to be assessed simply because an adjudicator determined that an insurer got a decision wrong. I do not find that in these facts the conduct of the respondent rises above being an incorrect decision.

CONCLUSION AND ORDER

21The applicant is entitled to the physiatry assessment.

22The applicant is not entitled to a special award.

23Interest is owing as of February 8, 2022 in accordance with the Schedule.

Footnotes

1. 1R.R.O. 1990, Reg. 664: AUTOMOBILE INSURANCE under Insurance Act, R.S.O. 1990, c. I.8
2. 2S.M. vs. Unica Insurance Inc., 2020 ONLAT 18-010164/AABS