Licence Appeal Tribunal File Number: 21-007454/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:
Susana Galang
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Yong
APPEARANCES:
For the Applicant:
Nicole Walker, Counsel
For the Respondent:
Robbie Brar, Counsel
HEARD: In Writing
OVERVIEW
1Susana Galang, the applicant, was involved in an automobile accident on April 10, 2019, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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 and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to a cost of examination in the amount of $2,000.00 for a chronic pain assessment, proposed by Prime Health Care Incorporated in a treatment plan/OCF-18 (“plan”) submitted on November 15, 2019, and denied on November 22, 2019?
iii. Is the applicant entitled to a cost of examination in the amount of $2,000.00 for a psychological assessment, proposed by Prime Health Care Inc. in a treatment plan submitted on November 10, 2019, and denied on November 20, 2019?
iv. Is the applicant entitled to a medical benefit in the amount of $3,696.50 for chiropractic services, proposed by MacKenzie Medical Rehabilitation Centre Inc. in a treatment plan submitted January 24, 2020, and denied on January 31, 2020?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
4Pursuant to s. 38(11) of the Schedule, the applicant is entitled to payment for the three treatment plans in dispute, plus interest in accordance with s.51 of the Schedule.
5The applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline (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. 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.”
7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
Has the applicant sustained injuries that warrant removal from the MIG?
8I find that the applicant has failed to prove, on a balance of probabilities, that she suffers from injuries that are not predominantly minor in nature as defined in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
9Although the Case Conference Report and Order dated May 17, 2020 (“CCRO”) and the applicant’s submissions do not list the MIG as an issue in dispute, the LAT application dated June 15, 2021, clearly indicated that MIG is an issue in dispute. As the bulk of the applicant’s submissions was dedicated to arguing why the applicant should be taken outside of the funding limits of the MIG and while the respondent submitted that the MIG was not listed as an issue in dispute in the CCRO, it did not make any formal objections and then dedicated a majority of its submissions to addressing why the applicant should be kept within the MIG. Hence, I will proceed to add the MIG as an issue in dispute at this hearing.
10The applicant submits that the physical injuries sustained from the subject accident have exacerbated her pre-existing conditions and injuries sustained from two prior motor vehicle accidents, such as a fractured sternum; the subject accident has substantially worsened her pain conditions and she now suffers chronic pain, including frequent headaches, neck, back and shoulder pain; and the subject accident has largely impacted her psychological wellbeing resulting in daily struggles with depression and anxiety exacerbated by her physical limitations. She relies on the clinic notes and records from her family physician, Dr. Zenia Sanchez, and submits that her pre-existing medical conditions, chronic pain and psychological condition all warrant her to be taken out of the treating limits of the MIG.
11The respondent submits that the applicant has not met her evidentiary onus of demonstrating that she suffers from injuries that should be taken outside of MIG. The respondent relies on the decision in 16-000438 v Personal Insurance, 2017 CanLII 59515 (ON LAT), which held that it is not pain alone that takes the applicant out of the MIG, the pain must be continuous or of such severity that it causes distress accompanied by a functional impairment or disability. The respondent also relies on the s. 44 reports by Dr. Irina Safir, general physician, and Mr. Andrew Phillips, occupational therapist, both finding that the applicant’s injuries are predominantly minor and do not warrant removal from the MIG.
Pre-existing medical condition
12I find that the applicant has not established that she suffers pre-existing medical conditions which would prevent the applicant from achieving maximal recovery under the funding limits of the MIG.
13The applicant’s allegations regarding the presence of pre-existing medical conditions were not supported by pre-accident medical evidence. There were no medical documents or CNRs that predated the accident submitted in evidence. Based on the CNRs of Dr. Sanchez and the s. 44 Insurer Examination (IE) reports submitted by the respondent, it was noted that the applicant’s pre-existing conditions include sleep apnoea, osteoarthritis in the knee, asthma, seasonal allergies and that she is a diabetic.
14Notwithstanding the above, none of the doctors whose records were filed concluded that these pre-existing medical conditions would prevent the applicant from achieving maximal recovery under the funding limits of the MIG.
15I find that the applicant has not demonstrated she should be removed from the MIG under s. 18(2) of the Schedule.
Psychological Impairment
16I am not satisfied that the applicant has established that she should be removed from the MIG on the basis of psychological injuries.
17The applicant submits that the subject accident has impacted her psychological well-being resulting in daily struggles with anxiety and depression. The respondent generally submitted that the applicant has not submitted compelling medical evidence to satisfy her onus of proof.
18Upon review of the evidence from both parties, I did not find any compelling medical evidence that the applicant suffers from any psychological impairment as a result of the subject accident. There were no cognitive complaints in any of the CNRs of Dr. Sanchez post-accident. The applicant was not prescribed any psychological medications and there is no evidence that she has been receiving psychological treatment.
19Hence, I am not persuaded that the applicant suffers from any psychological impairment that would take the applicant outside of the treating limits of the MIG.
Chronic Pain
20I find that the applicant has not established that she suffers from chronic pain accompanied by a functional impairment as a result of the accident.
21The applicant underwent a s.44 IE assessment on March 4, 2020, by Dr. Irina Safir, general physician, to examine whether the applicant suffers a complete inability to carry on a normal life. After reviewing the OCF-3 and an Occupational Therapy In-Home IE report dated April 7, 2020, and after conducting a physical and neurological examination, Dr. Safir opined that the applicant sustained cervical spine sprain/strain – WAD I/II, thoracolumbar spine sprain/strain, bilateral shoulder sprain/strain, right and left hip sprain/strain, right and left hip sprain/strain, and right and left knee sprain/strain. These are all minor injuries as defined in the Schedule.
22Dr. Safir also opined that the applicant demonstrated mild restrictions of the ranges of motion of the spine and functional ranges of motions of the lower extremities, and overall there was no significant objectively valid musculoskeletal impairment. She found that the applicant did not sustain any musculoskeletal impairment as a result of the subject accident that would result in a complete inability to carry on a normal life. Dr. Safir noted that the applicant reported no major change in her home routines following the subject accident. It was reported that the applicant was taking Vimovo for a long time, but Dr. Safir cautioned long term use of the medication and to seek advice from her family doctor with respect to the reported numbness in her right hand at the time. These findings all suggest that the applicant’s ongoing pain complaints do not have a significant impact on her ability to function normally.
23I find Dr. Safir’s IE report dated April 23, 2020 to be persuasive as her findings appear consistent with the rest of the applicant’s medical evidence, including the CNRs of Dr. Sanchez, the applicant’s family physician.
24The CNRs from Dr. Sanchez support the respondent’s position that the applicant does not suffer from chronic pain as a result of the accident and that there is no evidence of functional impairment that would take the applicant out of the treating limits of the MIG for the following reasons:
i. On April 22, 2019, during the first post-accident visit to the applicant’s family doctor, the applicant visited Dr. Zenia Sanchez for a follow-up appointment to review prior lab results. Dr. Sanchez diagnosed her with pre-diabetes and a rash. Dr. Sanchez noted “RTC for MVA Assessment” and does not note any accident-related impairments at this time;
ii. On April 29, 2019, Dr. Sanchez examined and diagnosed the applicant with cervical strain, upper and lumbar strain injuries, all “minor injuries” according to the Schedule. She recommended physiotherapy, massage and chiropractic treatment and prescribed Tylenol and Flexeril. It is noted that Dr. Sanchez did not order any diagnostic scans or x-rays;
iii. On July 22, 2019, the applicant asked for a refill of her medications as her allergies were “acting up” and for other medical issues unrelated to the accident. The applicant also reported persistent knee, neck, upper back and lower back pain, however Dr. Sanchez only noted “still going for physio” without prescribing further medications or ordering diagnostic tests to further investigate this issue;
iv. On October 3, 2019, the applicant again saw Dr. Sanchez to review new blood test results and the applicant again complained about “left knee pain x 6 day, after going up and down the stairs, Worse from sitting to standing and going up and down stairs, History of locking or giving way, Pennsaid and Naproxen with good effect. Not taking Cymbalta, and wants to D/C”. Dr. Sanchez observed that the applicant appeared “NAD” which I take to stand for no abnormality detected and no apparent distress, as well as “knee – swelling to medial side of left knee, effusion, no erythema, tender medial ligaments, full ROM, no instability”. Dr. Sanchez diagnosed the applicant with pre-diabetes and left knee osteoarthritis and provided counselling regarding osteoarthritis being a degenerative process and prescribed Tylenol, physiotherapy and recommended to continue Naproxen and Pennsaid. Specifically, Dr. Sanchez noted that the applicant could consider cortisone injections with flare up when symptomatic and if affecting activities of daily living and sleep, but it is a temporary relief which will not change the course of the disease. There is no mention that the complaints were related to the injuries sustained from the accident;
v. On February 3, 2020, Dr. Sanchez again diagnosed the applicant with right lumbar strain and asthma. Dr. Sanchez did not make any reference or assessment whether the medical issues were related to the accident and did not recommend further diagnostic tests for investigation;
vi. On March 11, 2021, Dr. Sanchez diagnosed the applicant with chronic back pain, shoulder pain and osteoarthritis in the knee. She recommended physiotherapy and massage. Dr. Sanchez did not make a finding or assessment of the possible cause of the chronic back and shoulder pain;
vii. On August 5, 2021, Dr. Sanchez assessed the applicant’s complaint of persistent back and leg pain and concluded that the applicant has chronic myofascial syndrome, chronic insomnia and osteoarthritis in the knee. Again, Dr. Sanchez’s diagnosis was made without any reference whether it was related to the subject accident or otherwise; and
viii. Although throughout the post-accident CNRs of Dr. Sanchez the applicant requested repeat of existing medications, including pain medications, I find that the pain medications were largely prescribed to treat the applicant’s osteoarthritis condition in her knee, and not due to pain from any injuries sustained from the subject accident.
25Based on the evidence tendered, I find that the applicant has not led sufficient compelling and contemporaneous evidence which support her claim that she suffers from chronic pain with functional impairment as the result of the accident that would warrant removal from the treating limits of the MIG.
26For these reasons, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she sustained anything other than predominantly minor injuries.
27Given my finding that the applicant sustained predominantly minor injuries as a result of the accident and is not removed from the MIG, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
28However, as an alternative argument, the applicant submits that the respondent breached s. 38(8) of the Schedule and that the disputed treatment plans should be deemed payable.
29Section 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 onus of proof for establishing that the denial letter was sent and delivered to the applicant is on the respondent (Nguyen v. Economical Mutual Insurance Company, 2023 ONSC 2541).
30On August 2, 2023, I requested the parties to provide further submissions to specifically address their positions on the issue of non-receipt of the denial letters, as raised by the applicant in her initial submissions, and any relevance or implications of the recent Divisional Court case of Nguyen v. Economical Mutual insurance Company, 2023 ONSC 2541 to this case.
31In the applicant’s last submissions, she maintains that she did not receive any denial letters for the disputed treatment plans, despite notice given to the respondent on July 9, 2019 that Cariati Law had been retained as the applicant’s legal representative from July 9, 2019, and onwards.
32The respondent submits that it has satisfied the requirements outlined in Nguyen, s. 38(8) and s. 64(1) of the Schedule, whereby the letter was issued in writing within 10 business days upon receipt of the same and confirmation of faxes showing the delivery of the denial letters for the disputed treatment plans were tendered in evidence.
Denial letter dated November 22, 2019, is invalid
33I find the respondent has failed to establish that the denial letter dated November 22, 2019, was sent by mail to the applicant and delivered by November 29, 2019 (i.e. ten business days after receipt of the OCF-18) in accordance with s. 38(8) of the Schedule.
34The subject OCF-18 for chronic pain assessment was submitted on November 15, 2019. The respondent tendered a letter dated November 22, 2019, in response to the OCF-18. This letter was addressed to the applicant at her home address and stated that a carbon copy of this letter would be sent by fax to Slomyanski Law and Prime Healthcare Inc.
35The respondent submits that it complied with s. 64(2)(d)(ii) because its letter was sent to the applicant at her last know address and that s. 64(18) states that a person is deemed to receive correspondence by ordinary mail on the fifth business day after it was mailed, in the absence of evidence to the contrary. The respondent further submits that, as it had not received any indication of delivery failure of previous letters to the applicant, it would be presumed that the subject letter was also successfully delivered to the applicant, thereby forgoing the need to further demonstrate successful delivery via ordinary mail.
36In order for s. 64(18) to apply, the respondent must first establish, with supporting evidence, that the letter was mailed to the applicant. In this case, the respondent did not provide any evidence as proof that the letter dated November 22, 2019, was sent by mail to the applicant’s home address. Tendering a letter alone is insufficient evidence to meet the respondent’s burden of proof of service.
37The respondent also submits that it complied with s. 64(3) and s. 64(4)(a) of the Schedule which permits a notice to be sent to a regulated health professional if the insured person is not represented at the relevant time by a solicitor or another authorised representative. The respondent submits that there are fax confirmations showing successful delivery to the treatment facility for which the applicant sought the denied treatment, whom would be an authorised representative for the period between legal representation. I disagree. Based on the evidence before me, the applicant provided notice to which the respondent acknowledged that Cariati Law was retained as the applicant’s legal representative from July 9, 2019, and onwards. Hence, as of November 22, 2019, the respondent was aware that Cariati Law was the authorised legal representative of the applicant, instead of Slomyanski Law or Prime Healthcare Inc.
38For the above reasons, I find the respondent has failed to comply with s. 38(8) of the Schedule. Although the applicant has not incurred the treatment plan, there is no evidence that the respondent cured the defect before this case is adjudicated by the Tribunal. There is also no evidence that the denial letter was sent to Cariati Law to cure the defect. Hence, I find that the respondent no longer has the opportunity to cure the defective denial letter thereby triggering the consequences of s. 38(11).
39Given the above reasons and in accordance with s. 38(11), I find the respondent is liable to pay for the treatment plan for a chronic pain assessment once the applicant has incurred the cost of the treatment plan following this decision.
Denial letter dated November 20, 2019, is invalid
40The OCF-18 was submitted on November 10, 2019, and received by the respondent on November 10, 2019. The denial letter was addressed to the applicant at her home address, and a carbon copy of the same to be faxed to Prime Healthcare Inc.
41The respondent made collective submissions on the issue of the denial letters and hence its submissions are the same as the above section.
42Based on the evidence, despite the fax to Prime Healthcare Inc. was successful, the respondent failed to lead evidence to prove that the letter was sent to the applicant by mail nor sent to Cariati Law.
43There is no evidence that the applicant incurred the cost of the subject treatment plan to date, however there is also no evidence that the respondent cured the defect before the case was adjudicated by this Tribunal.
44For the same reasons as the previous section, I find that the respondent no longer has the opportunity to cure the defect, as the matter has come before the Tribunal, and the obligations of s. 38(11) are triggered.
45Therefore, the applicant is entitled to incur the costs of the treatment plan following this decision and the respondent is liable to pay for the cost for the subject treatment plan.
Denial letter in response to the OCF-18 for chiropractic services
46The respondent lists the subject denial letter as “Tab 11” in its document brief, however the document at that Tab was in fact an IE report dated May 16, 2017 which was unrelated to the issues in dispute of this case. The applicant raised this problem in its last submissions, however the respondent did not make any reply submissions, despite having the opportunity to do so.
47As such, I find that the respondent has failed to establish its onus of proof that the denial letter was issued and delivered to the applicant in accordance with s. 38(8) of the Schedule.
48Given the respondent has failed to establish that it delivered the denial letter to the applicant in accordance with s. 38(8), and failed to provide evidence that it cured the defect before this case came before the Tribunal, the obligations under s. 38(11) are triggered.
49For the same reasons above, I find the applicant is entitled incur the cost of the chiropractic services following the decision and the respondent is liable to pay for the cost once incurred.
Award
50The 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.
51The applicant submits that the respondent acted in a manner that was “stubborn, unyielding and inflexible” which includes the respondent’s failure to take into account all of the pertinent medical evidence when it considered the OCF-18s, failure to arrange s. 44 IE assessments and failure to re-assess further information once in receipt. The respondent submits that there is no basis for an award as its denials were warranted.
52While I found that the treatment plans in dispute are payable, it was not based on an unreasonable withholding or delaying of payment of benefits. The respondent was found to have not complied with the requirements of s. 38(8) and the consequences for non-compliance are provided for in s. 38(11). Further, the applicant only made submissions but failed to pinpoint reference to any evidence to support its claim for an award.
53The award threshold is a high bar and more is required to demonstrate that the respondent’s behaviour satisfies the threshold requirements of an award.
54For the above reasons and as the applicant did not present any evidence to support her claim, I find an award is not appropriate.
ORDER
55The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
56Due to the respondent’s failure to comply with s. 38(8) of the Schedule, the applicant is entitled to payment for the three treatment plans in dispute pursuant to s. 38(11), plus interest in accordance with s.51 of the Schedule.
57The applicant is not entitled to an award.
Released: October 24, 2023
Lisa Yong
Adjudicator