Citation: Hagley v. Intact Insurance Company, 2023 ONLAT 21-011823/AABS

Licence Appeal Tribunal File Number: 21-011823/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:

Dolores Hagley

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Yong

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Yann Grand-Clement, Counsel

HEARD: In Writing

OVERVIEW

1Dolores Hagley, the applicant, was involved in an automobile accident on October 31, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In an earlier decision by the Tribunal, the applicant was found to suffer from chronic pain and was taken out of the treating limits of the Minor Injury Guidelines (MIG).

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $3,726.00 for a chronic pain assessment in a treatment plan (OCF-18) dated September 13, 2021?

ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The applicant is not entitled to a chronic pain assessment.

5The applicant is not entitled to interest in accordance with s. 51 or an award.

6The application is dismissed.

ANALYSIS

The applicant is not entitled to the OCF-18 for a chronic pain assessment dated September 13, 2021

7I find that the OCF-18 for a chronic pain assessment is not reasonable and necessary.

The denial notice complies with s. 38(8)

8The applicant submits that the respondent failed to provide adequate reasons for the denial of the OCF-18 pursuant to s. 38(8) of the Schedule. The applicant also submits that the respondent did not review the extensive medical records which provide ample support for the OCF-18, as it showed that the applicant’s ongoing chronic pain had not been resolved since the accident which happened almost seven years ago, and the respondent’s request for a separate Insurer Examination (IE) is unreasonable and against the “remedial and consumer protection” nature of the Schedule.

9The respondent submits that its letter was issued on September 23, 2021, in a timely manner, and referred to the treatment plan at issue; mentioned the applicant’s chronic pain diagnosis; stated that the medical records on file indicated the applicant has been receiving treatment from the appropriate healthcare providers; and since the applicant was already receiving treatment, a further chronic pain assessment is not reasonable and necessary. Together, the respondent submits that its letter is compliant with s. 38(8) of the Schedule.

10Section 38(8) of the Schedule 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. The requirement of medical reasons was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company 2018 CanLII 39373 (ONLAT) in which Executive Chair Lamoureux stated in paragraph 19:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

11The applicant also submits that at the time the OCF-18 was submitted, there were nine medical documents that were available to the respondent for consideration and submits that the respondent failed to review these documents. The respondent disagrees and submits that its letter made reference to the applicant’s chronic pain diagnosis and clinic notes from her treatment provider.

12In line with T.F. v. Peel, the respondent is only required to include specific details about the applicant’s condition forming the basis for the respondent’s decision or alternatively, identify information about the applicant’s condition that the respondent does not have but requires.

13On review of the respondent’s letter dated September 23, 2021, I find that the respondent properly denied the disputed OCF-18 within the ten business days as required under s. 38(8) of the Schedule. The letter identified the applicant’s diagnosis of chronic pain and stated “…it is noted in the medical records that [the applicant has] been and continue to be actively treated by the appropriate health care providers in relation to this condition. At this time, it is unclear why a chronic pain assessment would be required by a separate practitioner when [the applicant is] already receiving treatment for this condition. As a result, we require a second medical opinion which will be completed by a Section 44 Insurers Examination to determine if the requested assessment is reasonable, necessary or essential”. Based on the wording used by the respondent in its letter, I find that the reason for denial is “clear and sufficient enough to allow an unsophisticated person to make an informed decision” on whether to attend the IE or to challenge the insurer’s decision. I see no issue with s. 38 compliance that would make the OCF-18 payable.

14Further, with respect to the Notice of Examination dated September 23, 2021, the applicant did not make specific submissions with respect to s. 44(5) of the Schedule but can be implied from her previous arguments that the respondent provided inadequate reasons and due to the extensive medical documents available to the respondent, that the respondent’s request of an IE was unreasonable. The applicant did not provide any explanation for her non-attendance. As I have found the respondent’s letter to be compliant with s. 38(8), and as the Notice of Examination contained the same reasons as per the respondent’s letter, I therefore also find that the Notice of Examination to be compliant with s. 44(5), in particular s. 44(5)(a) of the Schedule. Therefore, the applicant is required to attend the IE.

Reasonable and necessary

15To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

16The applicant submits that the proposed OCF-18 was “certified” by the chiropractor, Mr. Darren Hylton, and the respondent’s request for an IE assessment is unnecessary since there is overwhelming medical evidence in favour of approving the OCF-18 and, had the respondent reviewed the list of medical documents, it would have approved the disputed treatment plan.

17In response, the respondent submits that the applicant devoted much of her submissions to whether a proper notice of denial was given and failed to make substantive submissions on whether the treatment plan is reasonable and necessary. The respondent also submits that an approval of the OCF-18 at face value is unreasonable and the Schedule specifically indicates that the insurer is allowed to request an IE after receipt of further treatment requests.

18I agree with the respondent that the applicant only listed the medical evidence but does not specifically provide any pinpoint references to the evidence and explain how it supports her claim. She only provides submissions and submissions are not evidence. The applicant must direct the adjudicator to the relevant evidence in support of her case and explain why she meets the reasonable and necessary test based on this evidence. An applicant cannot simply submit evidence and leave it up to the adjudicator to connect the dots and make her case. The applicant must explicitly explain why the evidence is supportive of her case. She has failed to do so.

19Further, I also agree with the respondent that the Schedule, in particular s. 44(1), clearly establishes a right to obtain independent medical opinions related to the disputed treatment plan. Previous Tribunal decisions have consistently held that an OCF-18 by itself does not amount to evidence sufficient to discharge the applicant’s burden of proving that the disputed treatment or assessment is reasonable and necessary.

20Based on the evidence tendered, I am not persuaded that a chronic pain assessment is reasonable and necessary:

i. The CNRs of Dr. Sam Bariana, family physician, from July 3, 2014 to January 16, 2016 were all handwritten and are largely illegible and therefore do not provide any assistance to the applicant’s claim;

ii. The updated CNRs of Dr. Bariana from April 18, 2020 to August 2, 2020, although all printed and legible, mainly concern other medical complaints unrelated to the accident-related injuries. The only relevant CNR entry is dated March 2, 2020 which noted that the applicant complained of lower back and right thigh pain. The applicant reported that she is receiving nerve block injections from the pain specialist and CNR states to continue with the pain medication. The applicant reported to Dr. Bariana that “[t]he injections help [relieve pain] for a week but returns.” Dr. Bariana diagnosed the applicant with chronic pain and recommended that she continue [with] the pain medication and injections by the pain specialist; continue physiotherapy which is “important to her recovery. Pt agreeable to plan.”

iii. The progress report dated July 13, 2017 by Dr. Dustin Yen, chiropractor from Physio Fix & Fitness, is outdated and does not provide a recent assessment of the applicant’s current medical condition. Therefore, I give little weight to this report;

iv. The psychological assessment report by Dr. Ana Bodnar dated September 23, 2017, is outdated and is irrelevant to the disputed OCF-18 as it does not speak to the applicant’s functionality and whether or not a chronic pain assessment is warranted;

v. There is compelling evidence that the applicant was referred by her family physician to a specialist with regards to her chronic pain diagnosis shortly after the accident. The CNRs from Dr. Matthew Bajzath, physician, are evidence that the applicant has been attending regular appointments for the diagnosis and treatment of her chronic pain symptoms since July 4, 2019, until January 2020. There were no further CNRs after January 2020, hence it is unclear as to the applicant’s current physical condition. Nonetheless, the CNRs noted that the applicant responded positively to the nerve block and trigger point injection therapy with improvement in pain in the treated areas. On July 25, 2019, Dr. Bajzath reported “[o]verall very significant improvement in the patient’s pain. She would like to continue [with treatment]”. On October 3, 2019, it was noted that the applicant “has been doing well. Overall pain much better than prior to trying injections. Would like to move to monthly injections. Minimal pain in shoulder now.” On January 16, 2020, it was noted that the applicant’s pain had been “pretty stable over the last month. Two weeks ago, pain worsen a bit in the low back after lifting low weight from the ground. Occasional sharp pain in the low back… Minimal leg pain now since the last sciatic injection. Now pretty much resolved… Tolerated injections well. Neurologically unchanged.”

21Given that the applicant already was seeing Dr. Bajzath at Karmy Chronic Pain Medical Clinic for chronic pain symptoms since July 4, 2019 with the last CNR entry tendered in evidence dated January 16, 2020 and the CNRs revealed that the applicant’s previous treatment received from Dr. Bajzath had yielded positive pain relief reported by the applicant, I question whether the assessment is necessary. It does not appear that the assessment in this OCF-18 was incurred by the applicant or a referral had been given by the applicant’s family physician prior to the date of the OCF-18. Since this OCF-18 was completed a year after the applicant had already been seeing Dr. Bajzath and the OCF-18 was not incurred, I fail to see how payment for same would be reasonable and necessary where the applicant already has a diagnosis and has been receiving beneficial treatment.

22The stated purpose of the proposed assessment, as set out in the OCF-18, was “to determine the nature of injury leading to the chronic pain condition; to determine the impact of the chronic pain condition; to provide a plan that may help to improve the functioning level; and to help the applicant return to activities of normal living.” In addition, the assessment would “determine the appropriate diagnosis and treatment options for the applicant. The treatment options may include conventional therapy, nerve blocks, pharmacological intervention, spinal decompression and possible referrals to other specialists to determine whether surgery is warranted.” I find that an additional assessment would be unlikely to add value in these respects. There appears to be little or no disagreement among the medical assessors as to the applicant’s accident-related diagnoses, and the applicant had already been evaluated and treated through a chronic pain clinic. There are no recommendations for further assessment from the applicant’s treating or consulting physicians.

23For the reasons above, I find that the applicant has failed to prove on a balance of probabilities that a chronic pain assessment is reasonable and necessary.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, interest does not apply.

Award

25The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have not found any benefits to be payable, there is no basis for an award.

ORDER

26The applicant is not entitled to a chronic pain assessment. She is not entitled to interest as no benefits are payable and is not entitled to an award under O. Reg. 664.

27The application is dismissed.