Licence Appeal Tribunal File Number: 23-002448/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:
Isabelita Candelaria
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Brent Vallis, Counsel
For the Respondent:
Sonya Reid, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Isabelita Candelaria, the applicant, was involved in an automobile accident on December 18, 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, Co-operators General 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 a non-earner benefit (“NEB”) of $185.00 per week from January 12, 2022?
iii. Is the applicant entitled to $4,114.05 for physiotherapy services proposed by One Life Wellness in a treatment plan/OCF-18 (“plan”) submitted on May 19, 2022, and denied on July 12, 2022?
iv. Is the applicant entitled to $1,268.57 ($3,368.08 less $2,099.51 approved) for physiotherapy services proposed by One Life Wellness in a plan submitted on February 17, 2022, and partially denied on March 3, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payment to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions, the applicant withdrew the issue of an award (v above).
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.
5The applicant is not entitled to payment of a NEB.
6The applicant is entitled to the treatment plan in the amount of $4,114.05 for physiotherapy services once it is incurred.
7The applicant is not entitled to the balance of $1,268.57 for physiotherapy services in the plan submitted on February 17, 2022.
8The respondent is liable to pay interest on any overdue payment of benefits.
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 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 may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
11The applicant submits that she should be removed from the MIG because of a pre-existing condition as well as chronic pain.
The applicant has not established that she suffers from chronic pain
12The applicant has not demonstrated on a balance of probabilities that she suffers from chronic pain with functional impairment because of the accident.
13I find that the clinical notes and records (“CNRs”) in relation to the subject accident indicate the following:
i. The applicant attended the Emergency Department of the hospital on December 20, 2021, with complaints of neck and back pain. She was prescribed Ibuprofen and advised to schedule an appointment with her family doctor as soon as possible.
ii. On February 10, 2022, the applicant attended to see her family physician, Dr. Maged Ibrahim with complaints of shoulder and neck pain.
iii. Ultrasound results of the left shoulder on February 17, 2022 indicated a decreased range of motion, mild bicipital tendon tenosynovitis, and a small amount of fluid in the subacromial and subdeltoid bursa which may be secondary to a bursitis.
iv. The applicant contacted Dr. Ibrahim on March 3, 2022, reporting neck and lower back pain. Dr. Ibrahim recommended physiotherapy and ordered x-rays.
v. An x-ray of the cervical and lumbar spine on March 3, 2022 revealed moderate degenerative changes in both areas, with significant narrowing of the neural foramina at C5. There was no prevertebral soft tissue swelling and there were no fractures in the cervical and lumbar spine.
vi. On March 14, 2022, the applicant attended to see Dr. Ibrahim, reporting neck pain. She was advised to continue with physiotherapy and to take Tylenol.
vii. On March 24, 2022, the applicant called Dr. Ibrahim requesting the CDs of the X-rays.
14I find that the remaining CNRs from Dr. Ibrahim are from 2023, and do not address any accident-related complaints.
15The applicant submits that she has continued to report accident-related complaints to her treating doctors and to attend for treatment since the accident. She further submits that due to her injuries, she has been unable to continue with her activities of daily living. The applicant filed an OCF-3 which was completed on February 17, 2022, by Jazmine Fetalvero, physiotherapist. Ms. Fetalvero indicates that the applicant’s sleep is disturbed, she feels pain whenever she moves, especially bending, turning, twisting, lifting, pushing, and pulling, and she frequently changes her position to manage her pain. Although the OCF-3 indicates that the applicant’s sleep is disturbed and she feels pain when doing activities, the OCF-3 does not specifically address which activities the applicant is unable to do.
16The applicant relies on the Tribunal decision of Zeledon v. Aviva Insurance Company, 2022 CanLII 124642 (ONLAT) (“Zeledon”) which held that a formal diagnosis of chronic pain is not required to be removed from the MIG. I find that Zeledon is distinguishable on the facts. At the time of the accident, the applicant in this matter was retired. She reported pain because of the accident for a period of 3 months after the accident. The applicant in Zeledon was consistently reporting lower back pain for over four years which was so disabling that she had to resign from her employment due to chronic pain. The Tribunal found that the applicant established that her pain was chronic and resulted in a functional impairment. The Tribunal has consistently found that a functional limitation is required for a determination of chronic pain.
17I find that the CNRs of the applicant’s family physician do not contain any reference to chronic pain, a referral for a chronic pain assessment or to a chronic pain specialist. Also, as indicated above, the CNRs indicate that the applicant only reported pain because of the accident for a period of 3 months after the accident. Further, I find that the applicant has not submitted any medical reports addressing the issue of chronic pain, nor has she submitted sufficient evidence of functional impairment because of chronic pain.
18For these reasons, I find that the applicant has not established on a balance of probabilities that she suffers from chronic pain causing a functional impairment because of the accident.
The applicant has not demonstrated that she has a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG
19The applicant has not proven on a balance of probabilities that she should be removed from the MIG because of any pre-existing conditions.
20Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. To do so, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
21In her submissions, the applicant refers to a page in Dr. Ibrahim’s CNRs, stating that pre-existing neck pain was clearly documented. I find that the records are handwritten and not legible. In any event, the applicant did not direct me to evidence that this injury would prevent maximal recovery from the minor injury if she were subject to the $3,500 on treatment costs under the MIG.
22For this reason, I find that the applicant has not established on a balance of probabilities that she should be removed from the MIG because of any pre-existing conditions.
The applicant is not entitled to a non-earner benefit
23I find that the applicant is not entitled to a NEB because she has not demonstrated a complete inability to carry on a normal life.
24Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment because of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
25The applicant submits that she sustained an impairment that continuously prevents her from engaging in substantially all the activities in which she was ordinarily engaged before the accident. In support of her claim, the applicant refers to the OCF-3 which was completed Ms. Fetalvero. As indicated above, the OCF-3 indicates that the applicant’s sleep is disturbed and she feels pain when doing activities, however I find that this is insufficient evidence to prove that the applicant suffers a complete inability to carry on a normal life.
26Further, I agree with the respondent’s submission that the applicant has not adduced any evidence, in line with the Heath decision, of her pre-accident activities or life circumstances, and as such, no comparison with the post-accident period can be made. I also find that the applicant has not submitted any medical evidence to corroborate the findings made by the physiotherapist in the OCF-3.
27For these reasons, I find the applicant is not entitled to a NEB as she has not demonstrated a complete inability to carry on a normal life because of the accident.
28As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. I will, however, address the applicant’s argument 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.
29The applicant submits that section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a 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 that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
The applicant is entitled to the treatment plan in the amount of $4,114.05 for physiotherapy services
30The applicant is entitled to this plan as the respondent did not comply with the requirements set out in section 38 of the Schedule regarding its denial notice.
31The applicant submits that the treatment plan in the amount of $4,114.05 for physiotherapy services that was submitted on May 19, 2022 was denied past the 10 day deadline, and as such, the respondent is responsible for paying it. The respondent filed its letter to the applicant dated June 6, 2022, advising that the treatment plan was denied pending an Insurer’s Examination. I find that this denial letter was dated on the 11th business day after the submission of the treatment plan. As such, I find that the respondent’s denial letter did not comply with section 38(8).
32Pursuant to s. 38(11), the applicant is entitled to this plan during the period of non-compliance, once it is incurred, and the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies.
The applicant is not entitled to the balance of $1,268.57 for physiotherapy services in the plan submitted on February 17, 2022
33I find that the applicant is not entitled to this plan as the respondent complied with the requirements set out in section 38 of the Schedule regarding its denial notice.
34The applicant submits that the denial of the treatment plan in the amount of $1,268.57 for physiotherapy services does not include valid or sufficient medical reasons. The applicant submits that the stated reason for the denial was that the applicant’s injuries fell within the MIG. Further, the applicant argues that there is no medical reason listed as to why the applicant does not need the treatment, and there is no comment on the applicant’s condition that formed the basis of the respondent’s denial. In addition, the applicant submits that the “medical and any other reason” should be clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
35The respondent submits that when the response letter was sent on March 3, 2022, the applicant had not submitted any medical evidence to the respondent. The respondent advised the applicant that they did not have medical documentation on file to support that her injuries fell outside the MIG. The respondent then referred to its email dated February 2, 2022, requesting her to complete the Activities of Daily Living Form provided, as well as to provide a copy of CNRs from all treating health practitioners, treatment clinics and diagnostic imaging centers dating 5 years back. The respondent submits that the letter is sufficient because they are not required to manufacture “medical reasons” where none exist, as held by the Divisional Court in Varriano v. Allstate, 2021 ONSC 8242. The applicant did not submit a reply.
36I agree with the respondent’s submissions. In this case, where the applicant did not provide any medical evidence to the respondent, it cannot be expected to manufacture medical reasons for the denial. As such, I find that the respondent denied the treatment plan in compliance with section 38(8).
Interest
37Interest 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 payment of benefits.
ORDER
38The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and is therefore subject to treatment within the MIG limit.
39The applicant is not entitled to payment of a NEB.
40The applicant is entitled to the treatment plan in the amount of $4,114.05 for physiotherapy services.
41The applicant is not entitled to the balance of $1,268.57 for physiotherapy services in the plan submitted on February 17, 2022.
42The applicant is entitled to interest on any overdue payment of benefits.
Released: December 19, 2024
Laura Goulet
Adjudicator