Licence Appeal Tribunal File Number: 20-015088/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:
Anna Lopreiato
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Justin Mariani, Paralegal
For the Respondent: Bryan Chin, Counsel
HEARD: By way of written submissions
BACKGROUND
1The applicant, Anna Lopreiato (“A.L.”), was involved in an automobile accident on June 7, 2018 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“the “Schedule”).1 Aviva denied her claims based on its determination that she sustained predominantly minor injuries as a result of the accident and was therefore subject to treatment within the Minor Injury Guideline (the “MIG”). A.L. disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues that are to be determined are as follows:
a. Are A.L.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
b. Is A.L. entitled to a non-earner benefit (“NEB”) of $185.00 per week from July 5, 2018 to date and ongoing?
c. Is A.L. entitled to $3,698.50 for physiotherapy services proposed by Mackenzie Medical Rehab in a treatment plan (OCF-18) denied on June 26, 2018?
d. Is A.L. entitled to $1,977.05 for chiropractic treatment proposed by Mackenzie Medical Rehab in an OCF-18 denied on November 13, 2018?
e. Is A.L. entitled to $1,384.70 for chiropractic treatment proposed by Mackenzie Medical Rehab in an OCF-18 denied on February 7, 2019?
f. Is A.L. entitled to $2,569.40 for physiotherapy services proposed by Mackenzie Medical Rehab in an OCF-18 denied on June 10, 2019?
g. Is A.L. entitled to $300.00 for chiropractic treatment proposed by Mackenzie Medical Rehab in an OCF-18 denied on June 20, 2019?
h. Is Aviva liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to A.L.?
i. Is A.L. entitled to interest on any overdue payment of benefits?
RESULT
3A.L. has not established that she suffered injuries that require removal from the MIG.
4A.L. is entitled to a NEB for the period of July 5, 2018 to October 22, 2019. Interest is payable in accordance with s. 51 of the Schedule.
5A.L. is entitled to an award.
ANALYSIS
The applicability of the MIG
6Section 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
7A.L. relies on the clinical notes and records (“CNRs”) of her family physician, Dr. Gorwill, and a June 19, 2018 Disability Certificate (OCF-3) completed by chiropractor, Dr. Ryan Pagnanelli, to support that her accident-related injuries require treatment beyond the MIG. I note that the injuries listed in the OCF-3 are captured within the definition of predominantly minor.
8Aviva’s position is that A.L. has failed to provide any objective, supportive evidence which warrant removal from the MIG. It submits that A.L.’s injuries are captured within the MIG, and she has not demonstrated a complete inability to carry on a normal life, or that the disputed OCF-18s are reasonable and necessary.
9Although A.L. submits that Aviva failed to obtain any s. 44 insurer examinations (“IE’s”), there is no requirement on Aviva to obtain same. Section 44(1) sets out that an insurer may require an insured person to be examined by one or more persons who are regulated health professionals or experts in vocational rehabilitation, chosen by the insurer, to determine entitlement to a benefit but not more often than is reasonably necessary. If Aviva determines that the medical documentation is insufficient, or there is a failure to provide necessary information to support a claim, Aviva is not obligated to conduct IEs. As stated above, the onus remains on A.L. to establish entitlement to a benefit.
10On the evidence, I find that A.L. has not established that she suffered injuries that require treatment beyond the MIG. In a September 26, 2018 Minor Injury Treatment Discharge Report (OCF-24), Dr. Somal, chiropractor, noted that A.L. could return to modified duties, but that she had difficulty performing housekeeping activities and requires assistance. The OCF-24 is not persuasive, because she is able to return to her activities, and I do not find that assistance with housekeeping is a significant indicator of treatment required beyond the MIG.
11While A.L. points to her various pain complaints in the clinical notes and records (“CNRs”) of Dr. Gorwill, I find that there is limited evidence in the CNRs, that supports A.L.’s claims. For example:
a. June 8, 2018 – discussed involvement in accident, normal range of motion of neck and back with stretching and exercise recommended;
b. February 20, 2019 – presented with left leg pain, no obvious precipitant noted;
c. February 25, 2019 – advised that x-ray results showed mild degenerative changes in lower back and hip. Physiotherapy treatment recommended; no connection made to accident;
d. April 15, 2019 – presented with bilateral knee pain since fall on both knees “a few months ago”;
e. June 13, 2019 – follow up from an accident on June 10, 2019, residual complaint is a sore right elbow. Dr. Gorwill recommended physiotherapy to back and neck for injuries sustained in an accident on June 10, 2019. I note that the date of the accident may have been a typo. However, because the error was made twice in Dr. Gorwill’s CNR, it is unclear whether a second, similar accident occurred;
f. June 14, 2019 – recheck of right elbow. Range of motion remains full and minimally painful; and
g. October 19, 2020 – complaining of right shoulder pain for the past few months. No history of injury or trauma.
12Dr. Gorwill’s records do not paint a picture of an individual who is suffering from significant physical injuries as a result of the accident. The above entries represent the extent of her pain complaints as it may relate to the accident, and in any event, full range of motion is noted on each occasion, pain is minimal, and there is no confirmation that she has suffered any lasting effects as a result of the accident, over one year later.
13Further, diagnostic imaging reports indicate that she suffers from minor degenerative issues, and there was no evidence of ongoing issues as a result of the accident.
14While A.L. relies heavily on the OCF-18s in support of her claims for treatment, I am not persuaded that the OCF-18s can adequately establish treatment beyond the MIG is reasonable. Without other supporting medical evidence or objective findings, A.L. has not established that removal from and treatment beyond the MIG is reasonable and necessary.
Are the OCF-18s reasonable and necessary?
15Having determined that A.L.’s injuries are appropriately captured within the MIG, and the $3,500.00 MIG treatment limit has been exhausted, and analysis of whether the disputed OCF-18s are reasonable and necessary is not required.
A.L. is entitled to a NEB
16Pursuant to s. 36(4) (a), (b) and (c) of the Schedule, within 10 business days after an insurer receives a claim for NEBs and the OCF-3, the insurer is required to pay the NEB, give notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to a NEB, and, if the insurer requires an examination under s. 44 relating to a NEB, so advising the applicant of the requirement for an examination, or send a request to the applicant under s. 33(1) for further information or under s. 33(2) for an examination under oath.
17In its explanation of benefits letter dated July 12, 2018 regarding NEBs, Aviva indicated that A.L. may be entitled to a NEB, that it required an OCF-3 to be completed by the treating practitioner (Aviva’s emphasis) and an OCF-5 (for disclosure of health information).
18A.L. submits that Aviva failed to comply with s. 36(4). Her position is that Aviva’s options were to pay the NEB or send a notice in compliance with s. 36(4) or send a request under s. 33(1) or (2). I agree.
19On the evidence, Aviva’s July 12, 2018 notice did not meet any of the requirements set out under s. 36(4), therefore, the insurer “shall pay” the specified benefit pursuant to s. 36(4)(a). I find the period of Aviva’s non-compliance under s. 36(4) is up to the date of a second notice dated October 23, 2019. I find the October 23, 2019 notice indicated the documents that Aviva required to determine entitlement to a NEB, under s. 33. The notice went on to indicate that the benefit will be suspended on November 6, 2019 until A.L. complied with the s. 33 request. While it is not clear from the evidence as to whether Aviva paid any NEB, it appears that the benefit was never paid. Therefore, I find that A.L. is entitled to a NEB for the period of July 5, 2018 to October 22, 2019.
AWARD
20Under s. 10 of O. Reg 664, the Tribunal may issue an award of up to 50 per cent of the amount to which an applicant is entitled if the Tribunal finds that the respondent has unreasonably withheld or delayed payments as a result of its conduct.
21Having found that A.L. is entitled to a NEB, as a result of Aviva’s failure to pay the NEB in accordance with s. 36(4), I find that an award is appropriate. As a sophisticated litigant, Aviva is aware of its obligations under the Schedule, as it pertains to a claim for NEB, and it ought to have known that its July 12, 2018 notice did not meet the requirements under s. 36.
22I find that Aviva’s failure to ensure that its July 12, 2018 notice complied with the requirements under s. 36 resulted in an unreasonable delay of A.L. receiving a NEB benefit. In addition, the non-compliant July 2018 notice was not rectified until October 23, 2019. As such, I find that an award in the amount of $500.00 is appropriate. While I leave the calculation of the NEB to the parties, I believe the $500.00 award represents a nominal percentage of the total amount of the benefit due. Further, I find that Aviva’s actions do not justify the maximum available to be levied against it.
CONCLUSION
23A.L. suffered predominantly minor injuries that are treatable within the MIG limits. The disputed OCF-18s are not reasonable and necessary.
24A.L. is entitled to a NEB for the period of July 5, 2018 to October 22, 2019. Interest is payable in accordance with s. 51 of the Schedule.
25A.L. is entitled to an award in the amount of $500.00. Interest is payable in accordance with s. 51 of the Schedule.
Released: January 25, 2023
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.