Citation: Law v. Allstate Insurance, 2024 ONLAT 22-013726/AABS
Licence Appeal Tribunal File Number: 22-013726/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:
Chi-Yuen Maverick Law
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR: Caley Howard
APPEARANCES:
For the Applicant: Ryan Olson, Paralegal
For the Respondent: Colleen Mackeigan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Chi-Yuen Maverick Law, the applicant, was involved in an automobile accident on July 21, 2021, 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, Allstate Insurance, 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 limit?
ii. Is the applicant entitled to $4,675.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) dated June 25, 2022?
iii. Is the applicant entitled to $2,200 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated August 2, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
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?
RESULT
3I find that:
(i) The applicant remains within the MIG and its $3,500 limit on treatment;
(ii) The respondent’s denial of the treatment plan dated June 24, 2022 did not comply with s. 38(8) of the Schedule. Therefore, the applicant is entitled to payment of the disputed treatment plan, upon submission of an invoice for services rendered, plus interest in accordance with s. 51 of the Schedule; and
(iii) The respondent’s denial of the treatment plan dated August 2, 2021 complies with s. 38(8) of the Schedule. Therefore, the applicant is not entitled to payment of the disputed treatment plan.
(iv) The respondent is not liable to pay an award under s. 10 of Reg. 664.
PROCEDURAL ISSUE:
4I find that the Tribunal is able to decide the issue of the award despite this issue not being included in the applicant’s application or in the Case Conference Report and Order.
5The applicant made submissions on the issue of the respondent’s liability to pay an award without explicitly seeking to add it as an issue before the Tribunal.
6The respondent submitted that the award was not an issue for this hearing, but made no further submissions about why the Tribunal should not add the issue or about any prejudice that the respondent would suffer if the Tribunal were to consider the issue. The respondent did respond to the applicant’s submissions on the respondent’s liability to pay an award.
7I find that any prejudice that the respondent may have suffered by the late addition of this issue was cured as the respondent had the opportunity to respond to the applicant’s submissions and did respond to those submissions. In this situation, where I have the submissions of both parties before me, I find that it is most efficient for me to consider these submissions and decide the issue on its merits.
ANALYSIS
The applicant is subject to treatment within the MIG limit
8I find that the applicant is subject to treatment within the MIG.
9Section 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.”
10An 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 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.
The applicant has not proven that he suffers from a psychological condition
11The applicant submits he should be removed from the MIG because he suffers from an accident-related psychological impairment. The applicant relies on the psychological pre-screen of Dr. McDowall contained in the treatment plan dated August 2, 2021.
12The respondent submits that Dr. McDowall’s pre-screen interview notes, attached to the treatment plan, shows only that the applicant presented with certain psychological symptoms or sequelae arising from his soft tissue injuries and that this is not sufficient to remove him from the MIG.
13Dr. McDowall’s clinical opinion, as expressed in the pre-screen interview notes, is that the applicant displays symptoms consistent with individuals suffering from post-accident psychological impairment. In the attached treatment plan, under “Injury and Sequela Information (Extended)”, Dr. McDowall lists: specific (isolated) phobias, headache, nightmares, nonorganic sleep disorders, irritability and anger. I note that Dr. McDowall’s opinion was formed on the basis of a pre-screen interview performed by Yvonne Ma, Registered Psychotherapist, on July 27, 2021, six days after the accident. The applicant does not direct me to:
any evidence that these symptoms persisted after that date; or
any additional medical evidence to corroborate his claim that he suffers from a psychological condition.
14In particular, the clinical notes and records of the applicant’s family doctor, Dr. Lee, do not corroborate the applicant’s claims of a psychological condition. Dr. Lee’s notes indicate that the applicant had two telephone appointments with Dr. Lee that mentioned the accident. The first occurred on July 23, 2021, two days after the accident. The applicant reports feeling pain in his shoulder, chest, neck, hip and back. There is no mention of any psychological symptoms. Dr. Lee recommends that the applicant go to the emergency room for diagnostic imaging to detect any musculoskeletal injuries. The second telephone appointment occurred on August 23, 2021. Dr. Lee’s notes on that date refer to the applicant’s shoulder pain. There is no mention of any psychological symptoms. Dr. Lee’s notes indicate that the applicant did not have another appointment until March 28, 2022, which appears to be for an unrelated matter.
15I note that Dr. Lee’s records show that the applicant participated in a sleep study on July 17, 2021, a few days prior to the accident, for snoring and possible sleep apnea. The sleep study report indicates that the applicant does not appear to have sleep apnea but does present with insomnia and anxiety/depression. There is no reference to these pre-existing sleep issues in the treatment plan or in Dr. McDowall’s pre-screening interview notes. I therefore find that Dr. McDowall’s opinion is based on an incomplete picture of the applicant’s health and accordingly give it reduced weight.
16I find that the treatment plan completed by Dr. McDowall, based only on a pre-screening interview and shown to be based on incomplete information, is not sufficient to prove, on a balance of probabilities, that the applicant has a psychological condition. Given the lack of any corroborating evidence from Dr. Lee’s clinical notes and records, I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition that warrants his removal from the MIG.
The applicant has not proven that he has chronic pain with functional impairment
17The applicant submitted that he suffers from chronic pain and should be removed from the MIG as a result. The applicant submits that chronic pain is a condition that persists for three to six months and that a formal diagnosis of chronic pain is not necessary in order to remove the applicant from the MIG. In support of this claim, the applicant relies on the clinical notes and records of his family doctor, Dr. Lee.
18The respondent submits that the records of Dr. Lee do not establish that the applicant suffered pain that persisted three to six months after the accident. The respondent further submits that the applicant does not meet the American Medical Association Guides to the evaluation of Permanent Impairment, 6th Edition, 2008 (“AMA Guides”) criteria for the assessment of chronic pain.
19I find that the clinical notes and records of Dr. Lee contain very few references to pain associated with the accident. The reports of accident-related pain that the applicant directs me to are dated July 23, 2021 and August 23, 2021, two days post-accident and just over one month post-accident, respectively. The applicant directed me to no other references to pain in Dr. Lee’s notes and records. I find that reports of pain for just over one month post-accident do not establish chronic pain. In addition, Dr. Lee’s notes do not include any mention of chronic pain or a referral to a chronic pain specialist.
20Even if the applicant had demonstrated that he experienced ongoing pain, the test for removal from the MIG requires the applicant to demonstrate ongoing pain with evidence of functional impairment. I find that the applicant did not direct me to evidence of functional impairments that he suffered as a result of chronic pain.
21Accordingly, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain with functional impairment due to the accident such that he should be removed from the MIG.
The applicant has not proven that he has a pre-accident condition that prevents his recovery within the MIG
22The applicant submitted that he suffered from injuries that prevent him from achieving maximal recovery under the limits of the MIG and cited s.18(2) of the Schedule. However, the applicant did not direct me to evidence of a pre-existing medical condition and did not indicate in his submissions what his pre-existing medical condition was. The applicant also did not direct me to evidence from a health practitioner that a pre-existing medical condition would prevent the applicant from achieving maximal recovery from his minor injury if he was kept within the MIG limits, as required by s. 18(2) of the Schedule.
23I find that the applicant has not proven on a balance of probabilities that he has a pre-existing medical condition that precludes his recovery from his minor injuries if he is not removed from the MIG.
24I have found that the applicant remains subject to the MIG and the Case Conference Report and Order dated July 31, 2023 indicates that the MIG limits have been exhausted. Therefore, it is not necessary to consider whether the disputed treatment plans are reasonable and necessary.
Compliance of the respondent’s denials with s. 38(8) of the Schedule
25Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.
26If an insurer fails to comply with s. 38(8), the consequences are:
(i) The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and
(ii) The insurer must pay for any proposed treatments or assessments set out in the plan that are incurred in the period starting on the 11th day after the insurer receives the plan and ending on the date when the insurer provides the insured with a response that complies with s. 38(8).
27Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), provides useful guidance on the meaning of “medical reasons.” It found that such reasons should:
(i) include specific details about the insured’s condition that formed the basis for the insurer’s decision; and
(ii) should allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.
Sufficiency of the respondent’s denial of the treatment plan dated June 25, 2022
28The applicant submits that the respondent has not provided the applicant with a denial of the treatment plan dated June 25, 2022 that complies with s. 38(8). The treatment plan in question proposed physiotherapy treatment in the amount of $4,675.12.
29The respondent submits that the Explanation of Benefits (EOB) dated July 12, 2022 was provided in response to the treatment plan dated June 25, 2022. I note that the EOB was not provided within the required ten days.
30The EOB indicates that the physiotherapy treatment proposed in the treatment plan was denied. The additional comments indicate that the treatment plan was reviewed in conjunction with the applicant’s information, the OCF-23 and other available file material, which “describes the injuries in keeping with the Minor Injury Guideline.” The comments go on to explain that as benefits have been approved up to the $3,500 MIG limit, there is no available balance for additional treatment plans.
31I find that this denial is not compliant with s. 38(8). While being subject to the MIG is a medical reason that could justify the denial of a treatment plan, the denial still must refer to sufficient medical documentation and reasons to justify the insurer’s position that the insured remains within the MIG.
32The additional comments in the EOB refer to the respondent having reviewed the treatment plan dated June 25, 2022 and the OCF-23. I find that the EOB does not refer to specific details in these documents upon which the respondent relied in coming to its decision that the applicant’s injuries remain subject to the MIG. Simply listing the medical documents and forms that have been reviewed by the insurer in coming to its decision is not sufficient to meet the insurer’s obligations under s. 38(8). These reasons may explain to the applicant what documents the respondent reviewed in coming to its decision, but they do not explain why it came to its decision in a way that would allow the applicant to decide whether to accept or dispute the respondent’s decision.
33I find that the EOB dated July 12, 2022 does not comply with s. 38(8) of the Schedule. I have not been directed to evidence that the respondent has since cured the deficient denial. The consequences in s. 38(11) are triggered and the treatment plan is payable, if incurred, as of the 11th day following the receipt of the treatment plan by the respondent, upon submission of an invoice for services rendered. This is despite the fact that the MIG limits have been reached because s. 38(11) of the Schedule prohibits the respondent from taking the position that the applicant has an impairment to which the MIG applies with respect to this treatment plan.
Sufficiency of the respondent’s denial of the treatment plan dated August 2, 2021
34The applicant submits that the respondent has not provided the applicant with a denial of the treatment plan dated August 2, 2021 that complies with s. 38(8). The treatment plan in question proposed a psychological assessment at a cost of $2,200.00.
35The respondent submits that it provided an EOB dated August 11, 2021 in response to the treatment plan dated August 2, 2021.
36The EOB indicates that based on the respondent’s review of the materials provided to date, including the treatment plan dated August 2, 2021, the applicant’s treatment should be subject to the limits of the MIG. The denial goes on to define “minor injury” and set out the benefits that are provided to an insured person who is subject to the MIG limits. The denial addresses the applicant’s specific injuries, as discussed in the treatment plan, by specifying that the MIG provides for up to $400 for supplementary goods and services, which would include supportive interventions to deal with accident-related psycho-social issues, such as distress, difficulties coping with injuries and driving problems/stress. The EOB also indicates that in order for the respondent to give further consideration to the request for additional funding set out in the treatment plan, the respondent requires “documented compelling evidence that the accident-related impairment is not predominantly a minor injury.”
37I find that the EOB is compliant with s. 38(8) because it engages the specific details of the applicant’s condition, specifically the applicant’s psychological symptoms described in the treatment plan and indicates that the applicant’s condition falls within the MIG, which is a medical reason that justifies the denial of a treatment plan. I further find that the specific request for “documented compelling evidence that the accident-related impairment is not predominantly a minor injury” is sufficient to explain to the applicant what additional evidence the respondent would need in order to consider the funding requested in the treatment plan.
38I find that the EOB dated August 11, 2021 complies with s. 38(8) of the Schedule. The consequences in s. 38(11) are not triggered and the treatment plan is not payable.
Interest
39I find that the applicant is entitled to interest on any overdue payments of the treatment plan dated June 25, 2022, if incurred, in accordance with s. 51 of the Schedule.
The respondent is not liable to pay an award
40While I have found that the respondent’s denial to one of the two treatment plans in dispute did not comply with s. 38(8), I find that this does not warrant a s. 10 award.
41The 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.
42The applicant submits that it is entitled to an award because the respondent refused numerous treatment plans despite not providing the applicant with any denial letters within 10 days of their receipt.
43The respondent submits that “unreasonable” behaviour includes behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate and does not include the insurer simply making the wrong adjusting decision.
44I find that, contrary to the applicant’s submissions, the respondent did issue EOBs in response to the disputed treatment plans. One of the EOBs was issued eight days after the ten-day deadline and I found that the reasons set out therein did not comply with s. 38(8). The other EOB was issued within the ten-day deadline and I found that the reasons set out therein complied with s. 38(8). The consequences for failing to comply with s. 38(8) are set out in s. 38(11). I find that it would not be appropriate to order an award as an additional consequence for the respondent’s non-compliance with s. 38(8) in the absence of evidence demonstrating how the respondent’s non-compliance amounts to unreasonable behaviour.
45I find that the applicant has not directed me to any evidence to demonstrate how the respondent’s deficient reasons to one of the treatment plans in dispute amounts to unreasonable behaviour. I find that the respondent’s non-compliance with s. 38(8) in this case amounts to a wrong adjusting decision, rather than the type of excessive or inflexible behaviour that could be classified as unreasonable.
46I deny the applicant’s claim for a s. 10 award.
ORDER
47I find that:
(i) The applicant remains within the MIG and its $3,500 limit on treatment;
(ii) The respondent’s denial of the treatment plan dated June 24, 2022 did not comply with s. 38(8) of the Schedule. Therefore, the applicant is entitled to payment of the disputed treatment plan, upon submission of an invoice for services rendered, plus interest in accordance with s. 51 of the Schedule;
(iii) The respondent’s denial of the treatment plan dated August 2, 2021 complies with s. 38(8) of the Schedule. Therefore, the applicant is not entitled to payment of the disputed treatment plan; and
(iv) The respondent is not liable to pay an award under s. 10 of Reg. 664.
Released: December 9, 2024
Caley Howard
Adjudicator