Sandy Estrela v. Wawanesa Mutual Insurance Company, 2024 CanLII 102096

Citation: Estrela v. Wawanesa Mutual Insurance Company, 2024 ONLAT 22-008260/AABS

Licence Appeal Tribunal File Number: 22-008260/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:

Sandy Estrela

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Alex Nikolaev, Counsel

For the Respondent: Michelle Panagiotakos, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sandy Estrela, the applicant, was involved in an automobile accident on July 18, 2020, 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, Wawanesa Mutual 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 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $1,581.50 ($3,695.50 less $2,115.00 approved) for physiotherapy services, proposed by Mackenzie Medical Rehab in a treatment plan/OCF-18 (“plan”) submitted July 27, 2020, and denied August 10, 2020?

iii. Is the applicant entitled to $33.00 ($1,300.00 less $1,267.00 approved) for physiotherapy services, proposed by Mackenzie Medical Rehab in a plan submitted November 9, 2020, and denied November 23, 2020?

iv. Is the applicant entitled to $1,908.55 ($2,026.55 less $118.00 approved) for chiropractic therapy services, proposed by Mackenzie Medical Rehab in a plan submitted December 28, 2020, and denied January 12, 2021?

v. Is the applicant entitled to $1,417.70 for chiropractic therapy services, proposed by Mackenzie Medical Rehab in a plan submitted February 17, 2021, and denied March 4, 2021?

vi. Is the applicant entitled to $1,417.70 for chiropractic therapy services, proposed by Mackenzie Medical Rehab in a plan submitted April 7, 2021, and denied April 20, 2021?

vii. Is the applicant entitled to $2,635.40 for chiropractic therapy services, proposed by Mackenzie Medical Rehab in a plan submitted July 7, 2021, and denied July 22, 2021?

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

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

3The applicant advised in her submissions that this issue viii above is withdrawn.

RESULT

4The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.

The applicant is not entitled to the treatment plans set out in issues ii, iii and iv.

5As the applicant has been found to be within the MIG, it is not necessary to determine whether the treatment plans set out in issues v, vi and vii are reasonable and necessary since the MIG limit has been exhausted.

6The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline

7Section 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.”

8An 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.

9The parties agree that the MIG limit has been exhausted.

The applicant’s physical injuries are predominantly minor

10I find that applicant’s physical injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.

11The applicant submits that her injuries fall outside the MIG as she has been diagnosed with a separated shoulder as a result of the accident. She refers to her family doctor’s records in support of her claim. The respondent submits that the applicant’s injuries are soft tissue in nature and, as such, she has failed to discharge her onus that her accident-related injuries fall outside the MIG.

12I do not accept the applicant’s submission that she sustained a separated shoulder in the accident. The applicant attended to see her family physician, Dr. Bevin Hamlet, on July 22, 2020, in relation to the accident that occurred on July 18, 2020. The applicant complained of pain in her left shoulder, which was aggravated with lifting and rotary movements of the shoulder. Dr. Hamlet noted that they “discussed possible underlying etiology of her shoulder pain including contusion, strain, ac joint separation, rotator cuff tear, etc”. Physiotherapy was recommended and the applicant was advised to continue taking Tylenol and topical Voltaren for pain management. Dr. Hamlet ordered an x-ray of the left shoulder, ac joints and u/s left shoulder. Dr. Hamlet discussed a joint separation as only one of the “possible” causes of her shoulder pain. Further, he referred the applicant for x-rays and the results, if any, were not filed as evidence. As such, I am not persuaded, on a balance of probabilities, that the applicant suffered from a separated shoulder.

13The applicant did not file medical records from Dr. Hamlet from later dates, or any other supporting medical documentation.

14The applicant attended for an Insurer Examination on March 22, 2021 with Dr. Rajka Soric, Physiatrist. The applicant reported that she used to have left shoulder pain, but this was not symptomatic at all at that time, and she was not taking any over the counter or prescribed medications. She reported intermittent back pain two to three times per week. The applicant’s physical and neurological examination were completely normal and there were no signs of physical impairments. Dr. Soric indicated that cursory assessment of the shoulder joints was also entirely normal. Dr. Soric concluded that the applicant sustained soft tissue injuries because of the accident which have resolved. Dr. Soric opined the applicant’s accident-related injuries were predominantly minor as defined by the Schedule.

15I find that applicant’s physical injuries are predominantly minor as defined in s.3(1) of the Schedule and therefore subject to treatment within the MIG funding limit.

The applicant does not suffer a psychological impairment as a result of the accident that would take her out of the MIG

16I find that the applicant has not demonstrated, on a balance of probabilities, that she suffered a psychological impairment as a result of the subject accident that would take her out of the MIG.

17Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of a “minor injury.” The applicant submits that her injuries fall outside the MIG as she has been diagnosed with post-traumatic anxiety because of the accident. She refers to her family doctor’s records in support of her claim. The respondent submits that there is no evidence of a psychological impairment and as such, the applicant has failed to discharge her onus that her accident-related injuries fall outside the MIG.

18I am not persuaded that the applicant suffered a psychological impairment because of the accident, based solely on the clinical records of Dr. Hamlet from July 22, 2020. The applicant complained of flashbacks and increased anxiety, chest discomfort, palpitations, tremors, and that she tended to be tearful when she thought of the accident. Her appetite and energy levels were “ok” and her concentration and focus were variable. She denied tiredness, fatigue, or any suicidal or homicidal ideation or plans. The assessment provided in the notes is as follows: “mvc left shoulder injury? contusion? strain? ac joint separation post traumatic anxiety.” Dr. Hamlet indicated that they would monitor her anxiety symptoms as she may require a referral to a psychologist if they do not abate. The applicant did not return to her family doctor with any psychological complaints, not did she file any reports from a psychologist or a psychiatrist. I find that this evidence is insufficient to demonstrate on a balance of probabilities that the applicant suffered a psychological impairment as a result of the accident.

19Further, the applicant attended for an Insurer Examination by Dr. Tatiana Dumitrascu, Psychologist, on April 5, 2021. The applicant reported that she has not received psychological treatment or required any psychological interventions following the accident. The applicant stated that her mood is normal, she socializes regularly, and she denied experiencing intrusive recollections of the accident. She reported that she feels insecure when driving because she does not trust other drivers anymore, however she drives her vehicle and travels as a passenger as needed. Clinical tests were administered, which did not reveal any clinically significant symptomatology. The applicant’s scores on the tests that assessed trauma symptoms, anxiety and depression were within the normal range. Dr. Dumitrascu was of the opinion that the applicant did not have a psychological impairment as a result of the accident.

20I am not persuaded by the applicant’s evidence that she has suffered a psychological impairment as a result of the accident based solely on a diagnosis made by her family doctor four days after the accident. The applicant did make any further psychological complaints to her family doctor, nor did she file any corroborating evidence that she suffered a psychological impairment. The only psychological report in this regard is the assessment by Dr. Dumitrascu, who opined that the applicant did not have a psychological impairment.

21On a consideration of the evidence, I find that the applicant’s anxiety symptoms as a result of the accident do not rise to the level of a psychological impairment that would take her out of the MIG.

22To 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.

23The applicant submits that the respondent has failed to comply with the requirements set out in s. 38(8) of the Schedule regarding its notices denying the treatment in the plans set out in issues ii, iii and iv. The applicant does not provide any submissions with respect to why the other treatment plans are reasonable and necessary.

24With respect to the treatment plans set out in issues ii, iii and iv, the respondent submits that their denials are fully compliant with s. 38 of the Schedule. The respondent argues that the applicant has not only failed to discharge her onus in relation to the remaining treatment plans, but her submissions are completely silent with respect to how they are reasonable and necessary.

The applicant is not entitled to the treatment plans set out in issues ii and iii

25I find that the applicant is not entitled to the plans set out in issues ii and iii as the respondent has complied with the requirements set out in section 38 of the Schedule regarding its notices denying these plans.

26The applicant submits that section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services and is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

27The respondent submits that pursuant to sections 38(5) and 38(6) of the Schedule, denials of treatment and assessment plans for services in respect of a period during which the insured is entitled to treatment within the MIG are final and not subject to review.

28I agree with the respondent that sections 38(5) and 38(6) apply to these treatment plans. The treatment plan set out in issue ii was denied on August 10, 2020, and pertains to a plan dated July 27, 2020, well before the treatment clinic submitted a Minor Injury Treatment Discharge Report (“OCF-24”) on November 14, 2020. The respondent’s denial indicated they believed the MIG applied to her impairment as they felt they had not received medical evidence to the contrary. The respondent advised they did not require a Treatment Confirmation Form (“OCF-23”) to be submitted and agreed to pay a maximum of $2,115.00 for the treatment. This plan falls within the period where the applicant was only entitled to treatment within the MIG and, as such, I find its denial is final and not subject to review.

29The treatment plan set out in issue iii was denied on November 23, 2020, and pertains to a plan dated November 9, 2020, submitted via HCAI on November 10, 2020, before the OCF-24 was submitted. The respondent took the position that the applicant’s impairment was predominantly minor and partially approved the plan to a maximum of $1,267.00. The respondent invited the applicant to provide additional medical documentation to consider. This plan falls within the period where the applicant was only entitled to treatment within the MIG and, as such, I find its denial is final and not subject to review.

The applicant is not entitled to the treatment plan set out in issue iv

30I find the applicant is not entitled to the treatment plan set out in issue iv as the respondent has complied with the requirements set out in s. 38(8) of the Schedule regarding its notice denying the treatment in the plan.

31The treatment plan set out in issue iv was denied on January 12, 2021, and pertains to a plan dated December 28, 2020, after the treatment clinic submitted an OCF-24. Section 38(8) sets out that the insurer shall give the insured person notice of any goods, services, assessments, and examinations described in the treatment and assessment plan that they do not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

32The applicant submits that the respondent did not provide a specific medical reason for its denial of the plan. The denial states nothing about the applicant’s specific medical condition, or on what basis the denial is being made. The letter only indicates that the plan is not reasonable and necessary because the applicant’s injuries fall within the MIG, without explaining what the MIG is and how it applies to her condition and diagnosis. The applicant submits she could not understand the denials because she was never informed what specific medical condition kept her in the MIG and why the treatment plan was not reasonable and necessary.

33In their submissions, the respondent points out that the denial letter partially approves the plan within the MIG limits, states that the MIG applies, and accurately identifies reasons why the MIG applies, namely that only limited medical documentation had been received and the information in those documents confirmed the injuries were minor. The letter sets out the definition of a “minor injury.” Further, it indicates that insufficient records to support treatment or injuries outside the MIG or compelling evidence of pre-existing conditions had been submitted, and that the treatment claimed is not reasonable and necessary. In the letter, the applicant is advised that additional medical documentation can be provided at any time to support her claim. The respondent submits that the denial is comprehensive, provides clear, detailed, and sufficient reasons, and is fully compliant with s. 38 of the Schedule.

34In reply, the applicant submits that the respondent cannot use the lack of medical evidence as an excuse to provide a medical reason because they could have listed one of the injuries on the Disability Certificate as the medical reason for the denial, they could have sent her for an insurer examination under section 44 of the Schedule or they could have made a section 33 request for medical documentation.

35The applicant referred the Tribunal to the reconsideration decision of Linda Lamoureux, Executive Chair, T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”), which considers how an insurer satisfies its obligation under section 38(8) of the Schedule. In T.F., the Tribunal found that “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.” The Tribunal further stated: “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.” I agree.

36I find the respondent’s letter dated January 12, 2021 identifies the medical reasons and all of the other reasons why the plan is denied. The letter identifies that the MIG applies because only limited medical documentation had been received and the information in those documents confirmed the injuries were minor. The letter goes on to set out the definition of a “minor injury.” Further, it indicates that insufficient records to support treatment or injuries outside the MIG or compelling evidence of pre-existing conditions had been submitted, and that the treatment claimed is not reasonable and necessary. I find that this letter is clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Further, considering my findings above that the applicant’s injuries fall within the MIG, the denial was justified.

37In the circumstances, I find that the applicant is not entitled to the treatment plan set out in issue iv, as the respondent complied with the requirements set out in s. 38(8) of the Schedule regarding its notice denying the treatment in the plan.

The applicant is not entitled to the treatment plans set out in issues v, vi and vii

38With respect to the treatment plans set out in issues v, vi and vii, as I have found the applicant's injuries to be subject to treatment within the MIG, and the MIG limit has been exhausted, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. The applicant is not entitled to these plans.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

ORDER

40The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and is therefore subject to treatment within the MIG limit.

41The applicant is not entitled to the treatment plans.

42The applicant is not entitled to interest.