Maharjan v. Allstate Insurance, 2023 CanLII 96363

Citation: Maharjan v. Allstate Insurance, 2023 ONLAT 20-010204/AABS

Licence Appeal Tribunal File Number: 20-010204/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:

Niran Maharjan

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Muhammad Aftab Alam, Counsel

For the Respondent: Yalda Aziz, Counsel

HEARD: By way of written submissions

OVERVIEW

1Niran Maharajan, (“the Applicant”), was involved in an automobile accident on March 29, 2018, and sought benefits from Allstate Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The Respondent characterized the Applicant’s injuries as a predominantly minor injury, subjected him to the Minor Injury Guideline, (“the MIG”), and denied certain treatment and assessment plans. The Applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The Respondent reconsidered its position after receiving the Applicant’s written submissions and the parties resolved some, but not all, of the issues in dispute.

PRELIMINARY ISSUE - Dr. Kale’s records

3During the hearing, the Respondent requested that I exclude the clinical notes and records (“CNRs”) of Dr. K. Kale, family physician, submitted by the Applicant. The Respondent submits that the records should be excluded from the hearing because they were disclosed on February 9, 2022, about five days after the deadline to produce evidence for the hearing.

4I reject the Respondent’s request because it has not demonstrated how it is prejudiced by the Applicant’s disclosure being about five days late. The Respondent made no submissions, nor tendered any evidence, that indicates it was prejudiced by the late disclosure of these records. The CNRs were served 5 days late and about a month before written submissions were to be made and I fail to see how this had any effect on the Respondent’s ability to defend its decisions made while adjusting the Applicant’s claim.

ISSUES

5The issues to be decided in the hearing are:

1. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 funding limit for minor injuries?
2. Is the Applicant entitled to a medical benefit in the amount of $2,195.00 for physiotherapy services, recommended by Good Health Rehab in a treatment plan dated September 4, 2018?
3. Is the Applicant entitled to a medical benefit in the amount of $2,195.00 for physiotherapy services, recommended by Good Health Rehab in a treatment plan dated February 21, 2019?
4. Is the Applicant entitled to a medical benefit in the amount of $2,883.20 for physiotherapy services, recommended by Good Health Rehab in a treatment plan dated July 27, 2020?
5. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for an Orthopaedic Assessment, recommended by Pearson Medical Assessment Centre in a treatment plan dated February 20, 2019?
6. Is the applicant entitled to a medical benefit in the amount of $897.72 for psychological services recommended by Pearson Medical Assessment Centre in a treatment plan dated July 9, 2019?
7. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated April 3, 2019?
8. Is the Applicant entitled to a medical benefit in the amount of $1,988.80 for a functional impairment assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated May 1, 2019?
9. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a physiatry assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated June 3, 2019?
10. Is the Applicant entitled to a medical benefit in the amount of $3,200.00 for a psychiatric assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated July 8, 2019?
11. Is the Applicant entitled to a medical benefit in the amount of $4,738.77 for psychological services recommended by Pearson Medical Assessment Centre in a treatment plan dated March 8, 2021?
12. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
13. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6The Applicant withdrew his claims for the following items:

a. The treatment plan dated February 20, 2019, in the amount of $2,000.00; b. The Treatment plan dated July 9, 2019, in the amount of $897.72; and c. The treatment plan dated May 1, 2019, in the amount of $1,988.80.

7The Respondent conceded that the Applicant’s injuries are not a predominantly minor injury and are not subject to the MIG.

8In addition, the following treatment plans are no longer in dispute as the Parties have resolved the issues:

a. The treatment plan dated September 4, 2018, in the amount of $2,195.00; b. The treatment plan dated February 21, 2019, in the amount of $2,195.00; c. The treatment plan dated June 27, 2020, in the amount of $2,883.20; and d. The treatment plan dated March 8, 2021, in the amount of $4,738.77

9Of the remaining issues in dispute, I find the following;

a. The Applicant is entitled to the incurred costs of the physiatry assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated June 3, 2019, and the psychiatric assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated July 8, 2019, plus interest. b. The chronic pain assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated April 3, 2019 is not reasonable and necessary.

10No award is payable.

BACKGROUND

11The Applicant was the driver of a vehicle which was struck on the side in a perpendicular fashion. He sought no medical attention at the scene of the accident but was taken to the collision reporting centre by tow truck and later drove to work after obtaining a rental vehicle. He visited his family physician, Dr. Kale, a few days following the accident and complained of back and neck pain. Dr. Kale diagnosed the Applicant with neck and back strains and made various recommendations including physiotherapy, massage therapy, analgesics, and referred him for an MRI to rule out a disc herniation.

12The results of the MRI were negative for a disc herniation but noted a small focal annular disc tear and probably minimal focal disc protrusion, no significant stenosis nor displacement of the right L5 nerve root. Dr. Kale’s recommendations never changed following receipt of the MRI. The Applicant commenced treatment for his neck and back pain about a week following the accident.

13In addition to his neck and back strains and headaches, the Applicant developed anxiety and depression following the accident. Dr. Kale prescribed Cipralex and Ativan and counselled the Applicant to commence counselling, which he later did with Dr. T. Toneatto, psychologist.

14As noted, many of the issues in dispute were withdrawn or resolved prior to this hearing. This decision focuses on the three assessments remaining in dispute: the chronic pain assessment, the physiatry assessment, and the psychiatric assessment.

ANALYSIS

15Section 15 of the Schedule entitles the Applicant to all reasonable and necessary expenses incurred as a result of the accident, subject to the restrictions outlined in section 15(2) and the monetary limits outlined in section 18. It is the Applicant’s burden to prove the benefits claimed are reasonable and necessary as a result of the accident.

16Section 38(8) of the Schedule provides that the Respondent must reply to a treatment and assessment plan within 10 business days of receipt from the Applicant. It also provides that the Respondent must include the medical and all other reasons why it refuses to pay for any goods and services proposed in the plan. The Respondent’s refusal to pay must be clear and unequivocal so that an unsophisticated person may understand it.

17A failure to provide medical and other reasons for a denial engages the consequences in section 38(11). This section prohibits the Respondent from taking the position that the MIG applies and provides that the Respondent is liable to pay for all goods and services incurred starting on the 11th business day following the submission of the treatment and assessment plan, until a compliant denial is provided.

$2,200.00 for a chronic pain assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated April 3, 2019?

18The Applicant claims entitlement to this treatment and assessment plan on the basis that the Respondent failed to provide medical and other reasons for the denial, because it never advised that additional sheets were attached to the denial.

19I find that the Respondent failed to provide the medical and other reasons to deny the chronic pain assessment however, the Applicant is not entitled to payment for it by operation of Section 38(11) because he did not incur the assessment. Section 38(11)2 provides that the Applicant is entitled to the goods and services incurred during the period of non-compliance. Here, the Applicant never proceeded with the chronic pain assessment, so it follows that he would not be entitled to the cost of it in the event the Respondent provided an insufficient denial.

20Further, I find that the Applicant is not entitled to the $200.00 fee for the completion of the treatment plan. I acknowledge that the Applicant submits that he incurred the cost of $200.00 related to the preparation and review of the file, however he has provided no evidence he incurred those fees during the period of non-compliance. The evidence demonstrates that the $200.00 fee in the treatment plan is for the completion of it. Pursuant to the Superintendent’s Guideline No. 03/14 (“the PSG”), the Respondent is not liable to pay for the completion of a treatment plan unless one or more of the goods or services described in it are either: approved by the insurer; deemed by the Schedule to be payable by the insurer; or determined to be payable by the insurer on the resolution of a dispute in accordance with sections 279 to 283 of the Insurance Act.

21The fee for completing the forms does not satisfy any of the 3 criteria outlined in the PSG. None of the goods or services listed in the treatment plan have been approved, deemed approved, or determined to be payable by the Respondent on the resolution of a dispute in accordance with sections 279 to 283 of the Insurance Act.

Is the chronic pain assessment reasonable and necessary?

22Having found that the Applicant is not entitled to the chronic pain assessment by statute, I must assess whether the chronic pain assessment is reasonable and necessary as a result of the accident. For the reasons that follow, I find that it is not.

23I find no compelling evidence that is contemporaneous with the treatment plan that suggests the Applicant suffers from a chronic pain condition. The CNRs of Dr. Kale that are contemporaneous with this treatment plan do not suggest that the Applicant suffers from a chronic pain condition. In fact, the Applicant made virtually no accident-related pain complaints to Dr. Kale between October 2018 and December 2019, despite visits for other reasons. This implies that the Applicant’s accident-related pain complaints at the time this plan was submitted did not rise to the level to warrant additional investigation. However, by September 2020, a year-and-a-half later, the Applicant’s pain complaints rose to a level where a consultation with a pain specialist was required, and Dr. Kale referred the Applicant to Dr. S. Al-Samak, physician, whose practice focuses on managing chronic pain. This pattern by Dr. Kale suggests that the Applicant’s pain was manageable following the accident, but later, in 2020, became unmanageable and the requisite referral to a pain specialist was made.

24The Applicant does not exhibit the hallmarks of a chronic pain condition. He is not functionally impaired by pain and, contrary to his submissions, does not meet American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”). The Applicant reports a withdrawal from social milieu, but I note that he continues to work at a warehouse. There is no evidence that he requires any restrictions at the workplace as a result of the accident – unlike in 2017 when his employer sought confirmation from Dr. Kale regarding his suitability to work following an injury, and in April 2020 when the Applicant required a note form Dr. Kale to confirm that he isolated for 14 days and is free of any viral symptoms. The physical examinations in the various reports before me show no signs of physical deterioration due to disuse. While the Applicant uses prescription medication, there is no evidence demonstrating that he is abusing medication or taking it beyond the recommended duration. Similarly, the Applicant sees healthcare providers however, the level of care does not exhibit excessive dependence on those healthcare providers. At most, the evidence at this time suggests that the Applicant developed psychosocial sequelae following the accident, as outlined in the psychological assessment report by Dr. T. Toneatto, psychologist, dated January 26, 2019. This evidence by Dr. Toneatto supports the Applicant’s need for psychological care, not a chronic pain assessment.

25Contrary to the Applicant’s reply submissions, I am not convinced that the chronic pain assessment is reasonable and necessary to provide an updated perspective on Dr. Al-Samak’s assessment. The Respondent submitted that a chronic pain assessment would be duplicative of Dr. Al-Samak’s assessment from September 2020. In reply, the Applicant submits that Dr. Al-Samak’s report is now stale, and a new assessment and report is required to provide an updated course of treatment. I disagree with both parties’ submissions here. First, the chronic pain assessment cannot be a duplication of services since it was proposed in 2019 and Dr. Al-Samak’s assessment was not conducted until September 2020. Second, the Applicant should submit a new or fresh treatment and assessment plan if he seeks an new assessment instead of relying on a treatment and assessment plan that is not contemporaneous.

26Considering these factors, I find that the Applicant has not met his burden to demonstrate that the chronic pain assessment is reasonable and necessary as a result of the accident.

$2,000.00 for a physiatry assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated June 3, 2019?

27I find that the Applicant is entitled to the incurred costs of the physiatry assessment because the Respondent failed to provide a valid denial, pursuant to section 38(8) of the Schedule.

28Pursuant to section 38(8) of the Schedule, the Respondent is required to provide the medical and all other reasons why it refuses to pay for a treatment and assessment plan. Caselaw provides that the medial and other reasons should be clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. If it fails to comply with these requirements, the Respondent is required to pay for all the incurred goods and services related to the treatment plan, until a proper notice is provided.

29The Respondent’s denial dated June 18, 2019, faxed to the Applicant on June 19, 2018, failed to provide the medical and other reasons, as required by section 38(8) of the Schedule. The denial states that the assessment and associated costs are not reasonable and necessary. The notice included an additional page in the fax package that refers the Applicant to an IE report by Dr. Mathoo, physiatrist, and concludes no further facility-based treatment is required. The additional comments further note that the Respondent concludes that the assessment is a duplication of services available through the OHIP system. The additional comments do not constitute a valid denial because the notice never referred the Applicant to those additional comments. The Respondent failed to check the box for additional comments attached to the notice, which would prompt an unsophisticated person to review those comments. Having failed to do so, the Respondent has failed to direct the Applicant to the medical and other reasons for the denial and is in breach of section 38(8) of the Schedule.

30The Respondent’s failure to provide a compliant denial engages the remedy outlined in section 38(11)(2). Thus, the Applicant is entitled to the goods and services related to the treatment and assessment plan that are incurred during the period of non-compliance. The account statement with Pearson Medical Assessment Centre Inc. demonstrates that the Applicant incurred the cost of the assessment, and it follows that the Respondent is liable to pay for same.

$2,200.00 for a psychiatric assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated July 8, 2019?

31I find that the Applicant is entitled to the incurred costs of the psychiatric assessment because the Respondent failed to provide a valid denial, pursuant to section 38(8) of the Schedule.

32As was the case with the physiatry assessment, the Respondent failed to direct the Applicant to the medical and other reasons why it refused to pay for the plan. Having failed to direct the Applicant to the medical and other reasons for the denial, the Applicant is in breach of section 38(8) of the Schedule.

33Again, the Respondent’s failure to provide a compliant denial engages the remedy outlined in section 38(11)(2). Thus, the Applicant is entitled to the goods and services related to the psychiatric assessment plan that are incurred during the period of non-compliance. The account statement with Pearson Medical Assessment Centre Inc. demonstrates that the Applicant incurred the cost of the assessment, and it follows that the Respondent is liable to pay for same.

Interest

34Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that the Applicant is entitled to the physiatry and psychiatric assessments, it follows that he is also entitled to interest.

Award

35The Applicant sought an award under section 10 of Reg. 664. Under section 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.

36The Applicant submits that an award is payable because the Respondent did not approve the treatment plans when they were reasonable and necessary. To him, this resulted in the withholding and delaying of the payment of benefits and therefore he is entitled to an award. The Respondent submits that the there is no evidence that an award is merited in this instance given that the Applicant has failed to point to a specific instance where it failed to properly adjust his file.

37I agree with the Respondent and find no award payable. Although the Respondent failed to direct the Applicant to its medical and other reasons to deny the assessments, this does not amount to the unreasonable withholding or delay of benefits. It otherwise relied on the opinions outlined in the IE reports. An award is a punitive measure that is not applicable in this situation.

CONCLUSION AND ORDER

38The Applicant withdrew his claims for the following items:

i. The treatment plan dated February 20, 2019, in the amount of $2,000.00; ii. The Treatment plan dated July 9, 2019, in the amount of $897.72; and iii. The treatment plan dated May 1, 2019, in the amount of $1,988.80.

39The Respondent conceded that the Applicant’s injuries are not a predominantly minor injury and are not subject to the MIG.

40In addition, the following treatment plans are no longer in dispute as the Parties have resolved the issues:

iv. The treatment plan dated September 4, 2018, in the amount of $2,195.00; v. The treatment plan dated February 21, 2019, in the amount of $2,195.00; vi. The treatment plan dated June 27, 2020, in the amount of $2,883.20; and vii. The treatment plan dated March 9, 2021, in the amount of $4,738.77

41The Respondent is ordered to pay the incurred costs of the physiatry assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated June 3, 2019, and the psychiatric assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated July 8, 2019, plus interest.

42The chronic pain assessment recommended by Pearson Medical Assessment Centre in a treatment plan dated April 3, 2019 is not reasonable and necessary.

43No award is payable.