Licence Appeal Tribunal File Number: 23-001305/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:
Tonny Nsubuga
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Joshua Meshack, Counsel
For the Respondent:
James Schmidt, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Tonny Nsubuga, the applicant, was involved in an automobile accident on August 3, 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 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 (“MIG”) limit?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 8, 2021, to August 3, 2022?
iii. Is the applicant entitled to the following services proposed in a treatment plan/OCF-18 (“plan”) by Back to Life Rehabilitation Centre:
(a) $1,046.10 for chiropractic services in a plan dated February 2, 2021?
(b) $1,046.10 for chiropractic services in a plan dated May 14, 2021?
(c) $2,000.00 for psychological services in a plan dated June 30, 2021?
(d) $876.88 for chiropractic services in a plan dated October 8, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG funding limit.
4The applicant is not entitled to an IRB.
5The applicant is entitled to the treatment plans for chiropractic services dated February 2, 2021, and May 14, 2021.
6The applicant is not entitled to the remaining treatment plans.
7The respondent is not liable to pay an award.
8The respondent is liable to pay interest on any overdue benefits pursuant to s. 51 of the Schedule.
ANALYSIS
Applicability of the Minor Injury Guideline
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. 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.
11The applicant submits that he should be removed from the MIG due to his chronic pain and psychological complaints.
12The parties agree that the MIG limit has been exhausted.
The applicant does not suffer from chronic pain as a result of the accident
13I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain because of the accident.
14I find that the applicant has not met his onus of submitting evidence of chronic pain with a functional impairment. In addition, I find that there is evidence in the clinical notes and records (“CNRs”) of injuries sustained in a second accident in September 2021 (“the other accident”), a year after the accident that gives rise to this claim.
15In reaching this conclusion, I note that on September 11, 2020, the applicant reported to his family physician, Dr. Michelle Kuisma, that he was at a stop sign and was hit. There was no loss of consciousness or head injury. He reported some mild neck pain. Dr. Kuisma noted his exam was normal.
16The applicant refers me to an entry in Dr. Kuisma’s CNRs dated September 30, 2021, where he reports being involved in a rear end collision the month prior. The applicant suggests that the date is wrong, and it should be September 30, 2020, by indicating “[sic]” after the date. I find, however, that the CNRs are clearly set out in chronological order, with a reference to the accident that gives rise to this claim on September 11, 2020. I find that the records from September 11, 2020 indicate that the applicant complained of mild neck pain only, with no mention of knee pain, back pain, or headaches. I find that the CNRs indicate that it is more likely than not that the applicant was involved in an accident in August or early September 2021, approximately a year after the accident that gives rise this claim.
17On September 30, 2021, the applicant reported to Dr. Kuisma that during the accident a month prior, he hit his knee on the dash and developed back pain and a headache a few days later. Dr. Kuisma noted there was no bruise or swelling on the left knee. On September 29, 2021, the applicant reported left leg pain as well as headaches and lower back pain that comes and goes.
18On November 22, 2021, the applicant reported worsening left knee pain since accident “last year.” On February 8, 2022, the applicant reported ongoing headaches and knee pain “since August 2020 accident.” The doctor noted that it was unclear why he was not improving and that an x-ray and ultrasound revealed some minor pathology. An ultrasound of the left knee dated December 13, 2021 revealed mild proximal patellar tendinitis, and an x-ray on the same date indicated there was no evidence of arthritis or injury.
19The applicant also filed CNRs from Dr. Jason Ali, physician, from October 18, 2022, where he reported knee and back pain from an accident two years prior and that he used alcohol to help him sleep or if he is stressed. The applicant further reported that he found it difficult to drive because he feels scared. On December 7, 2022, the applicant reported knee pain, back pain, and headaches. During both consultations, the applicant was assessed with joint pains and advised to take Tylenol and to continue with physiotherapy.
20The applicant submits that he should be removed from the MIG due to his chronic pain complaints to Dr. Kuisma and Dr. Ali, from tendonitis in his left knee. The applicant did not make any other submissions or file any medical reports supporting the fact that he suffers from chronic pain because of the accident. Further, I find that his treating physicians did not make a referral to a chronic pain specialist.
21The respondent submits that virtually all the applicant’s submissions are in relation to the other accident, and not the accident that gives rise to this claim.
22On a consideration of all the evidence, including the evidence relating to the other accident, I find that the applicant has not proven that he has chronic pain with functional impairment because the only notation in the CNRs that his ability to function was affected is in one report to Dr. Ali on October 18, 2022 that he found it difficult to drive due to fear, which was over two years and two months after the accident that gives rise to this claim. Although the applicant makes complaints of pain to his treating physicians, the CNRs do not provide sufficient evidence of functional impairment as a result.
23For these reasons, I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with a functional impairment because of the accident that gives rise to this claim.
The applicant does not suffer a psychological impairment as a result of the accident
24I find that the applicant has not demonstrated on a balance of probabilities that he suffers a psychological impairment because of the accident.
25The applicant submits that he should be removed from the MIG due to his psychological complaints to Dr. Kuisma and Dr. Ali.
26On a review of the CNRs of Dr. Kuisma and Dr. Ali, I find that the applicant reported a fear of driving to Dr. Ali on one occasion on October 18, 2022, over two years and two months after the accident that gives rise to this claim, which, in the absence of other evidence, is insufficient to establish that the applicant suffers from a psychological impairment because of the accident. I find there are no further psychological complaints to treating physicians, psychological records, or reports in support of the applicant’s position.
27For these reasons, I find the applicant has not established on a balance of probabilities that he suffers from a psychological impairment because of the accident that warrants removal from the MIG.
The applicant is not entitled to an income replacement benefit
28I find that the applicant is not entitled to an IRB.
29To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
30The applicant did not make submissions or provide evidence with respect to why he is entitled to an IRB. For this reason, I find that he has not established on a balance of probabilities that he is entitled to an IRB.
31To 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.
32The applicant does not submit that the treatment plans are reasonable and necessary. Rather, he submits that the denials of the treatment plans do not comply with section 38(8) of the Schedule.
33The 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.
34The applicant relies on decisions from the Tribunal which find that “medical and any other reasons” should include specific details about the insured’s condition forming the basis of the denial, or identify information about their condition that is required, and the reasons should be clear enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision. The applicant submits that this was not done in this case by the respondent in all their denials. Although I am not bound by other decisions by the Tribunal, I agree with the findings in the decisions cited by the applicant.
35I find that the applicant is entitled to these two treatment plans because the respondent did not provide denials compliant with section 38(8) of the Schedule.
36I find that the denial letters with respect to these two treatment plans indicate that there is insufficient medical documentation on file to support that the applicant’s injuries fall outside the MIG, and that there is no compelling evidence that he has a pre-existing injury that would prevent maximal recovery if subject to the MIG limit. For the denials to comply with section 38(8), I find that they must include, at a minimum, details about the applicant’s condition forming the basis of the denials. There are no such details in the denial letters. I find that the denials are vague, and an indication that “there is insufficient medical documentation,” without further explanation clearly pointing to the evidence or missing documentation, does not provide a medical reason.
37The respondent submits that the applicant failed to provide a timeline as to what evidence the respondent had in its possession at which times, and as such, there is insufficient evidence proffered with respect to the conclusions the applicant wishes to be drawn as to the deficiency of any denials. I find that the respondent should know what evidence it had in its possession when it denied the treatment plans, because this evidence, or lack thereof, should form the basis for the denials.
38For these reasons, I find that the applicant is entitled to the treatment plans for chiropractic services dated February 2, 2021, and May 14, 2021, because the respondent did not provide denials that comply with section 38(8).
39I find that the applicant is not entitled to the treatment plan for psychological services because the respondent provided a denial that complies with section 38(8) of the Schedule.
40The applicant argues that the respondent did not provide specific medical reasons for the denial, and that this denial was not provided within the 10-day requirement. Further, the applicant submits that the respondent did not give a reason why it preferred the Insurer’s examination over the “essentially identical” treatment plan. The applicant also referred to the fact that the respondent needlessly, improperly, if not “illegally” obtained the Insurer’s Examination (“IE”) reports, however it did not provide submissions explaining this.
41I find that the denial letter sent on August 16, 2021 for this treatment plan indicates that the determination was based on the IE report of Dr. Tatiana Dumitrascu, psychologist, who found that there were no psychological impairments identified and that the applicant does not meet the DSM5 criteria for a psychological disorder.
42I find that the respondent did provide medical reasons because it identified that the applicant did not suffer a psychological impairment, as indicated in its IE assessment. I find that the respondent need not explain why it prefers an assessment over a treatment plan. It need only provide a clear medical reason for the denial. Further, I have reviewed the documents referred to by the respondent, indicating that it received the treatment plan on August 3, 2021, and responded with its denial on August 16, 2021, which is 9 business days.
43For these reasons, I find that the respondent provided a denial compliant with section 38(8) and therefore the applicant is not entitled to the treatment plan for psychological services.
44I find the applicant is not entitled to the plan for chiropractic services dated October 8, 2021.
45In his submissions, the applicant has a heading entitled “Facts related to treatment plan OCF-18 dated October 8, 2021” which refers to the denial letter dated August 13, 2021 and a treatment plan for a psychological assessment dated June 29, 2021 in a footnote. The applicant’s only submissions in relation to this heading indicate: “The insurer failed to provide a response to the June 30 OCF-18 within the prescribed 10 day requirement.”
46The applicant made general submissions that the respondent failed to comply with section 38(8) with respect to the wording in its denials of all the treatment plans because the reasons provided for the denials are “wildly at odds with the wording, the common law interpretation and the spirit of the Schedule.” The applicant failed to point to how the wording of the denial with respect to the October 8, 2021 treatment plan did not comply with section 38(8).
47For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the plan for chiropractic services dated October 8, 2021.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The respondent is liable to pay interest on any overdue benefits pursuant to s. 51.
Award
49The 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.
50The applicant submits that the respondent has an obligation to seriously consider the benefits being claimed by the applicant and that the denials lack any indication this this was done. Further, the applicant submits that the respondent used vague, ambiguous, generic “boilerplate” denial wording, and that its continuing and unjustifiable withholding of benefits is clearly excessive, imprudent, stubborn, unyielding, or immoderate.
51It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
52I find that the respondent’s behavior does not reach that high standard. Further, having found that the applicant is within the MIG, he is not entitled to an IRB or two of the treatment plans, I find that there is no basis for ordering an award.
ORDER
53The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
54The applicant is not entitled to an IRB.
55The applicant is entitled to the treatment plans for chiropractic services dated February 2, 2021, and May 14, 2021.
56The applicant is not entitled to the remaining treatment plans.
57The respondent is not liable to pay an award.
58Interest is payable on any overdue benefits pursuant to s. 51 of the Schedule.
Released: December 18, 2024
Laura Goulet
Adjudicator