Licence Appeal Tribunal File Number: 22-005417/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:
Leticia Narciso
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Samia Makhamra
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Emily Wilson, Counsel
HEARD:
By written submissions
OVERVIEW
1Leticia Narciso, the applicant, was involved in an automobile accident on November 25, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by the respondent, Unifund Assurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“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 limit (“MIG”)?
ii. Is the applicant entitled to medical benefits proposed by Humber Civic Care Centre as follows:
a) $1,566.27 for a chiropractic treatment plan dated May 21, 2020;
b) $2,818.80 for a chiropractic treatment plan dated August 13, 2020; and,
c) $2,629.85 for a chiropractic treatment plan dated March 22, 2021?
iii. Is the applicant entitled to medical benefits for assessments proposed by Q medical as follows:
a) $2,401.25 for a chronic pain assessment plan dated February 27, 2021; and,
b) $2,486.00 for a psychological assessment plan dated February 17, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The preliminary issue raised by the respondent, seeking to bar the applicant from proceeding with the application for failing to attend a s.44 insurer’s examination (“IE”) is dismissed.
4The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
5The three treatment plans for chiropractic treatment proposed by Humber Civic Care Centre that are in dispute are not reasonable and necessary.
6The two assessment plans proposed by Q Medical for a chronic pain assessment and a psychological assessment are not reasonable and necessary.
7The applicant is not entitled to interest as there are no overdue benefits.
PRELIMINARY ISSUE
Should the applicant be barred from proceeding for failing to comply with s. 44 of the Schedule?
Overview
8This preliminary issue was raised by the respondent on or around July 24, 2023 by way of a motion and was ordered by the Tribunal to proceed in writing with this written hearing. The respondent is seeking an order barring the applicant from proceeding with her application on the basis that she failed to attend an IE, pursuant to s.44 of the Schedule. The respondent is also seeking an order for costs in the amount of $250.00, in accordance with Rule 19 of the Licence Appeal Tribunal Rules (“Rules”).
9By way of a letter dated March 16, 2023, the respondent requested an IE for the purpose of determining whether updated medical information it had received affected the conclusions of Dr. Mansour Alvi, orthopaedic surgeon, who had previously assessed the applicant on September 8, 2020. The notice of examination (NOE), dated March 28, 2023, set the IE for April 11, 2023 as an in-person examination with Dr. Alvi. The applicant did not attend. The respondent was billed $383.35 for the assessment.
10In a letter dated April 21, 2023, the respondent advised the applicant that the IE she had missed was rescheduled to May 16, 2023. The applicant did not attend. The respondent was billed $317.81.
11The respondent subsequently followed up with applicant’s counsel on June 6, 20, 27, and July 6, 2023, requesting an explanation for non-attendance. On July 6, 2023, applicant’s counsel advised the respondent that it was impossible for the applicant to attend and provided updated records.
12The respondent argues it was prejudiced by the applicant’s non-compliance with the IE because it was unable to adequately respond to updated medical records. It submits the NOEs are compliant with the Schedule, the timing of the IE is appropriate – it relies on Tribunal decision in GWR v. Commonwell Mutual Insurance, 2021, CanLii 13003 (ONLAT) (GWR v. Commonwell Mutual Insurance), the IE is reasonably necessary, and, as the applicant did not offer a reasonable explanation for non-compliance, she should be barred from proceeding, pursuant to s.55(1)2. The respondent is also asking for costs on the grounds that the applicant’s conduct is unreasonable and frivolous and has negatively impacted the Tribunal’s ability to carry out a fair and efficient process.
13In response, the applicant submits she was in hospital before the case conference of February 17, 2023, and again on May 18, 2023, and could not attend additional IEs because of her medical condition.
14The applicant further questions the timing of the IE given it was requested after she filed her Tribunal application, which was on May 10, 2022, after the case conference that took place on February 17, 2023, and over 3 years after the last IE, which was the IE of September 8, 2020 with Dr. Alvi. She also questions the reason for the IE and argues it was for the respondent to respond to the additional medical documentation that was recently provided, and not to determine whether her injuries were a result of the subject accident and fell within the MIG.
Analysis
15On the submissions and evidence, the respondent’s request to bar the applicant from proceeding is dismissed. My reasons are set out in the next paragraphs.
16The Schedule is clear in that an insured person has a duty to participate in an IE that is reasonably necessary and for which there is a notice that is compliant with the Schedule. The request for an IE engages the Schedule as follows:
a. Section 44 gives an insurer the right to conduct IEs, and also limits that right to IEs that are reasonably necessary.
b. Section 44(5) sets out the NOE requirements, which include the medical and other reasons for the examination, whether attendance is required, the names of the persons who will conduct the examination with their medical credentials, and, if attendance is required, the date, time and location of the examination.
c. If an insured person does not comply with a request for an IE under s.44, s.55(1)2 prohibits the insured person from applying to the Tribunal.
d. Under s.55(2) the Tribunal may allow an application to proceed despite failure to attend an IE.
17I have reviewed the respondent’s letters and the NOEs dated March 28 and April 21, 2023, and find that they are not compliant with s.44(5) as they did not provide the required medical and other reasons. In its letter of March 16, 2023, the respondent advised that it required an examination under s.44 to determine if recently provided information affected the conclusions of Dr. Alvi in his previous IE report of September 2020. In the NOEs, the respondent indicated that the reasons for the IE was to address medical and rehabilitation benefits – OCF 18 – treatment. Simply put, the information in these documents is not enough to satisfy the requirement for there to be medical and other reasons.
18There is Tribunal guidance in this respect - see the widely cited decision in M.B. v. Aviva Insurance Canada 2017 CanLii 87160 (ON LAT). In short, medical and other reasons need to entail reasons that are drawn from the unique facts and medical condition of the insured, identify information about the insured’s condition that the insurer requires but does not have, and, they need to be clear and sufficient for an unsophisticated person to make an informed decision on whether to attend or challenge the IE. Considering this in light of the case at hand, I do not find that stating the need for an updated IE and referring to the previous IE of Dr. Alvi, as the respondent did in its NOE, is sufficient to satisfy its obligation to provide medical and other reasons. In my view, it is too vague. There was nothing offered in the way of specific medical evidence of the previous IE that led the insurer to make the current IE request. This is not to say that a comprehensive list of medical reasons is necessary. Rather, I do find it necessary for there to be a reference to the findings of the previous IE and what they were, that now require a new IE. This was not done.
19Alternatively, in the event that my view of the respondent’s notice is wrong, I rely on s.55(2) and the Tribunal’s ability to control its process. In doing so, I rely on the fact that the applicant’s conduct at issue is post-application, and a complete bar of her application as a whole would be disproportionate to the offending conduct. Lastly, with my finding that the NOEs are deficient, I do not need to address the parties’ arguments regarding the timing of the IE, or whether a reasonable explanation, if offered, would be enough to allow the application to proceed. I will say, however, that the case before me is distinguishable on the facts from GWR v. Commonwell Insurance Company, the case the respondent is relying upon. For example, unlike the case before me, in that case the insurer requested the IEs before the insured person applied to the Tribunal.
20Given my finding that the applicant can proceed with her application, an order for costs is not warranted.
SUBSTANTIVE ISSUES - ANALYSIS
Parties’ submissions
21The applicant submits she should not be in the MIG because she suffers from non-minor physical injuries, chronic pain with functional limitations, and psychological impairments from the accident. She relies on the clinical notes and records of her family doctor, Dr. Arsalan Monavvari, the records of North York General Hospital, and of Humber Civic Care Centre Inc. – where she received treatment for a few months following the accident.
22The respondent submits the applicant’s injuries are minor and subject to the MIG framework. It relies on the clinical notes and records, as well as the findings of Dr. Alvi in his IE report. Dr. Alvi assessed the applicability of the MIG, and whether the treatment plans that are in dispute for chiropractic treatment for $1,566.27, dated May 21, 2020, and for $2,818.80, dated August 13, 2020, were reasonable and necessary. Dr. Alvi concluded that the applicant’s injuries were minor, and that her existing symptoms at the time were linked to her age-related degenerative issues. He concluded that the treatment plans were not reasonable and necessary.
23In addition, as I understand it, the respondent is also concerned with causation. The applicant had a car accident on June 8, 2021, that is, after the car accident here, but has failed to provide information about this accident despite a Tribunal order - from the case conference of February 17, 2023 - and a s.33 request by the respondent dated March 16, 2023 – s.33 indicates that an insured person must, within 10 business days of receiving a request, provide the insurer with any information reasonably required to assist in determining entitlement to a benefit, after which the insurer has the right to withhold payment of benefits for the period of non-compliance.
The applicant’s injuries are within the MIG
24Based on the submissions and evidence, I find that the applicant sustained minor injuries and is subject to treatment within the MIG framework. Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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”.
25An insured person 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 from their minor injury if they are kept with 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. Importantly, the burden of proof lies with the applicant.
26On the information before me, there is no compelling evidence of the applicant’s injuries being other than minor, of chronic pain, or of a psychological impairment, in the clinical notes and records of Dr. Monavvari, or other treatment providers, that would warrant her removal from the MIG. Nor is there evidence of a pre-existing injury that was exacerbated by the accident and would impede her recovery. Dr. Monavvari noted a whiplash injury and mechanical pain early on in the appointments following the accident; he recommended Tylenol, physiotherapy, lumbar support and back exercises.
27The same applies to the records from the treatment providers. Shortly after the accident, the applicant was seen at the Emergency Department of the North York General Hospital on November 25 and December 3, 2019, where she was noted to have sustained a whiplash injury with no head trauma, with a recommendation for massage physiotherapy, a heating pad, and Tylenol as needed for pain. Similarly, the clinical notes and records from Humber Civic Care Centre Inc. also documented minor injuries that fit in the MIG framework. Importantly, there is no evidence before me to challenge Dr. Alvi’s conclusions that the applicant’s injuries were minor, and that her reported symptoms of pain were unrelated to the accident and did not remove her from the MIG.
28Problematic to the applicant’s argument is also the fact that she was in a subsequent car accident on June 8, 2021, and yet the record before me does not include any records or details from this accident, for example, her resulting injuries, or treatment she might have received, or is receiving. This is so despite a s.33 request by the respondent, and despite a Tribunal order that required the applicant to produce written confirmation of whether she had been involved in an(other) accident. To date, the applicant has not produced this information.
29On the submissions, there is no dispute that the applicant was in a car accident on June 8, 2021; however, in the absence of information about this accident, I am unable to appreciate how her existing injuries are indeed from the accident at hand, as claimed, and not from this subsequent accident.
30In summary, based on the submissions and evidence, I find that the applicant sustained minor injuries and is subject to treatment within the MIG framework.
The applicant is not entitled to the treatment plans in dispute
31I find there is no compelling evidence that the treatment plans in dispute are reasonable and necessary. The respondent denied these plans on the basis that the applicant’s injuries were in the MIG, and there was insufficient medical evidence to indicate otherwise. I agree.
32The treatment plans for chiropractic treatment for $1,566.27, dated May 21, 2020, and for $2,818.80, dated August 13, 2020, were the subject of Dr. Alvi’s IE, and found not to be reasonable and necessary in light of the applicant’s minor injuries. With no evidence to challenge Dr. Alvi’s conclusions, I accept that these plans are not reasonable and necessary. The remaining treatment plan for $2,629.85 for chiropractic treatment plan dated March 22, 2021 that is in dispute is no different; it proposes similar treatment and there is no evidence to challenge the finding that the applicant’s injuries are minor.
The applicant is not entitled to the assessment plans in dispute
33I find the assessment plans for $2,401.25 for a chronic pain assessment dated February 27, 202 and for $2,486.00 for a psychological assessment dated February 17, 2021, not to be reasonable and necessary, also on the basis that the applicant’s injuries are minor, and there is no evidence to the contrary to warrant these assessments.
ORDER
34For the reasons outlined above, I order the following:
The preliminary issue raised by the respondent, seeking to bar the applicant from proceeding with her application for failure to attend a s.44 Insurer’s Examination is dismissed.
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
The following treatment plans for chiropractic treatment proposed by Humber Civic Care Centre are not reasonable and necessary:
i. $1,566.27 for a chiropractic treatment plan dated May 21, 2020;
ii. $2,818.80 for a chiropractic treatment plan dated August 13, 2020; and,
iii. $2,629.85 for a chiropractic treatment plan dated March 22, 2021.
- The following assessment plans proposed by Q Medical are not reasonable and necessary:
i. $2,401.25 for a chronic pain assessment plan dated February 27, 2021; and,
ii. $2,486.00 for a psychological assessment plan dated February 17, 2021?
- The applicant is not entitled to interest as there are no overdue benefits.
Released: November 26, 2024
Samia Makhamra
Adjudicator