Licence Appeal Tribunal File Number: 22-013385/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:
Janet Bunagan
Applicant
and
Travelers Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Adam B Kuciej, Counsel
For the Respondent: No submissions were filed
HEARD: By way of written submissions
OVERVIEW
1Janet Bunagan, the applicant, was involved in an automobile accident on August 3, 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, Travelers Insurance Company of Canada, 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 an income replacement benefit in the amount of $206.65 per week from January 20, 2022 to January 17, 2023?
iii. Is the applicant entitled to attendant care benefits in the amount of $2,922.12 per month from January 21, 2022 to date and ongoing?
iv. Is the applicant entitled to $3,795.50 for physiotherapy services, proposed by Mackenzie Medical and Rehabilitation in a treatment plan (“OCF-18”) dated August 18, 2021?
v. Is the applicant entitled to $2,026.55 for physiotherapy services, proposed by Mackenzie Medical and Rehabilitation in an OCF-18 dated December 30, 2021?
vi. Is the applicant entitled to $1,417.70 for physiotherapy services, proposed by Mackenzie Medical and Rehabilitation an OCF-18 dated February 7, 2022?
vii. Is the applicant entitled to $2,973.02 for occupational therapy assessment, proposed by Innovative Occupational Therapy Services in an OCF-18 dated August 13, 2021?
viii. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Innovative Occupational Therapy in an OCF-18 dated August 13, 2021?
ix. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions the applicant confirmed that the issue of the OCF-3 assessment, listed as issue no. 9 in the Case Conference Report and Order (“CCRO”) dated July 21, 2023, was withdrawn.
RESULT
4I find that:
i. The applicant is removed from the Minor Injury Guideline;
ii. The applicant is entitled to income replacement benefits in the amount of $206.65 per week from January 20, 2022 to January 17, 2023;
iii. The applicant is not entitled to attendant care benefits;
iv. The applicant has established that the OCF-18s dated August 18, 2021, December 30, 2021 and February 7, 2022 for physiotherapy services, are reasonable and necessary;
v. The following treatment plans are payable pursuant to s. 38(11)2 of the Schedule:
i. OCF-18 dated August 13, 2021 for an occupational therapy assessment;
ii. OCF-18 dated August 13, 2021 for an attendant care assessment;
vi. The applicant is entitled to interest in accordance with s. 51 of the Schedule; and
vii. The respondent is not liable to pay an award.
PROCEDURAL ISSUES
Proceeding with the hearing in the absence of submissions from the respondent
5The respondent did not file any submissions or evidence for this written hearing. I find that that the Tribunal has met its reasonable notice obligations. Therefore, I am proceeding with this written hearing in the absence of the respondent’s hearing submissions.
6Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.
7A case conference was held on July 20, 2023 with both parties in attendance. This resulted in the CCRO that set the matter down for a written hearing. This CCRO included production orders and deadlines for written submissions and evidence. The applicant’s submissions and evidence were due 30 calendar days prior to the scheduled hearing; the respondent’s submissions and evidence were due 14 calendar days prior to the scheduled hearing.
8The Tribunal sent a Notice of Written Hearing (“NoWH”) to both parties on July 27, 2023. This NoWH set April 5, 2024 as the date for the written hearing. The NoWH included the provision that the Tribunal may make a decision without the participation of either or both of the parties and without further notice if submissions were not filed.
9The applicant filed her written hearing submissions and evidence on March 6, 2024, in accordance with the timeline as established by the CCRO and the NoWH. To date, the respondent failed to file any written submissions or evidence for the hearing.
10There is no evidence that the respondent’s contact information or legal counsel changed or was otherwise incorrect in Tribunal records. If the respondent’s information or counsel differed from what was originally provided to the Tribunal, it had an obligation under Rule 4.4 of the Tribunal Rules to provide the correct information. As a result, I am satisfied that the Tribunal has met its notice obligations pursuant to s. 7(2) of the SPPA and is in compliance with ss. 6(1) and 6(4) of the SPPA.
ANALYSIS
Minor Injury Guideline (“MIG”)
11Section 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.”
12An 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 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’s impairments warrant removal from the MIG
13I find that the applicant has established that she suffers from accident-related chronic pain, warranting removal from the MIG. The clinical notes and records (“CNRs”) of the applicant’s family physician Dr. Atwal reveal that in the years post-accident, the applicant regularly reported suffering from ongoing neck, upper, mid, and lower back pain, and left shoulder pain. The applicant was prescribed prescription pain medication by Dr. Atwal.
14Dr. Atwal also referred the applicant to a number of specialists to investigate her ongoing pain. In a November 22, 2022 reporting letter, Dr. Fernando Martinez, physiatrist and pain specialist, diagnosed the applicant with myofascial syndrome of the left shoulder and recommended nerve blocks and myofascial blocks. Dr. Atwal further referred the applicant to Dr. Hossein Amani, physiatrist, specifically referencing the applicant’s “chronic pain post MVA”. In June and October 2023, Dr. Amani recommended physical therapy and cortisone injections for the pain.
15The applicant has also led evidence that her chronic pain has led to functional restrictions. The CNRs of Dr. Atwal indicate that the applicant was unable to work post-accident until January 17, 2023. Dr. Atwal provided medical notes for the work leave and upon the applicant’s return to work, recommended modified work duties. The family physician noted the applicant’s restrictions with heavy lifting and standing. The applicant has also submitted a s. 25 occupational therapist’s (OT) report which noted the applicant’s reduced range of motion in the neck, left shoulder and lumbar spine.
16Finally, the applicant has led evidence of psychological impairments arising from the accident and her ongoing pain. She submits a s. 25 psychological assessment report dated September 18, 2023. In this report, Dr. Kanagaratnam, psychologist, noted the applicant’s ongoing pain symptoms and diagnosed the applicant with a number of psychological impairments, including somatic symptom disorder with predominant pain – persistent, mild to moderate.
17The respondent has not provided any submissions or evidence to refute the applicant’s evidence. Based on the medical evidence before me, I find that the applicant has met her onus to prove, on a balance of probabilities, that she has sustained chronic pain with functional restrictions as a result of the accident. As such, the applicant is removed from the MIG.
Income Replacement Benefits (“IRBs”)
18I find that the applicant has established entitlement to IRBs in the amount of $206.65 per week from January 20, 2022 to January 17, 2023, the date of the applicant’s return to work.
19To 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.
20The applicant’s pre-accident employment was as a part-time pharmacy assistant. According to her OCF-2, the role involved dispensing patient medication and managing inventory. In the s. 25 OT report, Mr. Stuart added that the role also involved lifting and carrying heavy orders of inventory, and the work demands included the ability to lift medium, and heavy weighted items, emotional regulation and money management.
21I find that the applicant has led sufficient evidence that as a result of the accident, she suffered a substantial inability to perform the essential tasks of her employment as a pharmacy assistant. The CNRs of the applicant’s family physician reveal the applicant’s ongoing chronic pain and Dr. Atwal’s numerous doctor’s notes for medical leave from work. Even once it was determined that the applicant could return to work in January 2023, Dr. Atwal recommended restrictions such as not lifting items greater than 10 kg., or standing longer than one hour. Both of the applicant’s treating physiatrists also confirmed her ongoing pain and functional restrictions.
22Further, the applicant’s OT assessor found in his s. 25 OT Functional Assessment Report that given the applicant’s physical impairments, reduced functional tolerances, low mood and reduced cognitive abilities, it would be challenging for the applicant to return to work. The applicant was limited in her ability to lift or carry items due to pain and reduced strength. The applicant also reported to her s. 25 psychological assessor that even after her return to work in 2023, she still struggles to complete a workday at the pharmacy due to pain, fatigue, and issues with concentration. She will leave 2 hours early from work now, is not lifting more than 30 pounds, avoids standing for a prolonged time, and has less interaction with customers.
23The respondent has not provided any submissions or evidence to refute the findings of the applicant’s s. 25 assessors, or treating physicians. Based on the medical evidence before me, I find that the applicant has established entitlement to IRBs for the period in dispute.
Attendant Care Benefits (“ACBs”)
24I find that the applicant has not established entitlement to ACBs.
25The applicant has not provided any specific submissions as to why attendant care services are reasonable and necessary. Rather, the applicant’s sole argument on the issue of ACBs is that since she has been removed from the MIG, the Tribunal must find that the Form 1 is reasonable and necessary pending completion of a s. 42 assessment, if the respondent chooses to request one. However, the applicant has not provided any caselaw or statutory reference in support of her argument. She does not direct me to which provision of the Schedule mandates that ACBs are automatically reasonable and necessary, upon a claimant’s removal from the MIG.
26I am not persuaded by the applicant’s argument. From my review of the Schedule, I do not see a provision stipulating that upon a claimant’s removal from the MIG, a Form 1 is deemed reasonable and necessary. Without any further clarification from the applicant on this point, and without any submissions on the reasonableness and necessity of ACBs, I find that the applicant has not established entitlement to this benefit.
27Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
28The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.
OCF-18’s for physiotherapy services dated August 18, 2021, December 30, 2021 and February 7, 2022
29I find that the applicant has established that the three OCF-18s for physiotherapy services are reasonable and necessary.
30The applicant submitted three OCF-18s for a combination of physical therapy services. The first OCF-18 dated August 18, 2021 was the initial treatment plan, and proposed 18 sessions each of chiropractic treatment, physiotherapy and massage therapy. The stated goals of the plan were: pain reduction, increase in strength and range of motion, return to activities of normal living and return to modified work activities. The second OCF-18 dated December 30, 2021 had the same stated goals, and proposed nine sessions each of chiropractic, massage and physiotherapy treatment. The final OCF-18 dated February 7, 2022 proposed six sessions each of the same treatment modalities.
31Based on the medical evidence before me, I find that the applicant has met her onus to prove, on a balance of probabilities, that the proposed treatment is reasonable and necessary. At the time the OCF-18s were submitted, the applicant was consistently reporting, and being treated for, chronic pain. Both of the applicant’s treating physiatrists recommended ongoing treatment in 2022 and 2023. Dr. Martinez recommended continued physiotherapy, and Dr. Amani recommended ongoing physical therapy for the applicant’s pain. In his December 31, 2021 report, the applicant’s OT assessor Mr. Stuart also recommended continued physiotherapy, chiropractic treatment and massage therapy.
32The respondent has not provided submissions or evidence to refute the recommendations of the applicant’s s. 25 assessor and treating doctors. Given the applicant’s ongoing pain and functional restrictions, and the fact that the subsequent OCF-18s noted some improvement with treatment, I find that the OCF-18s for physiotherapy services are reasonable and necessary.
OCF-18 dated August 13, 2021 for an occupational therapy assessment and OCF-18 dated August 13, 2021 for an attendant care assessment
33The applicant submits that both OCF-18s dated August 13, 2021 are payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule. She argues that the respondent failed to provide a medical reason for the denials, in accordance with the principles in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT).
34I agree with the applicant that the respondent’s letters dated August 24, 2021 were non-compliant with s. 38(8). The stated reasons for the denials used boilerplate, non-specific language and do not contain any specific details about the applicant’s medical condition, or identify what information the respondent required from the applicant. In my view, the letters lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.
35As such, I find that pursuant to s. 38(11)2, the OCF-18s dated August 13, 2021 are payable by the respondent upon proof that the denied treatment has been incurred.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the outstanding IRBs, and treatment plans.
Award
37The applicant sought an award under s. 10 of Regulation 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.
38I find that the applicant has not established a basis for an award. Although the applicant provides general submissions that “there is no evidence the records were reviewed” and that the respondent improperly denied benefits and kept her within the MIG, the applicant does not direct me to specific evidence of unreasonable withholding of benefits. As such, the respondent is not liable to pay an award.
ORDER
39I find that:
i. The applicant is removed from the MIG;
ii. The applicant is entitled to IRBs in the amount of $206.65 per week from January 20, 2022 to January 17, 2023;
iii. The applicant is not entitled to ACBs;
iv. The applicant has established that the OCF-18s dated August 18, 2021, December 30, 2021 and February 7, 2022 for physiotherapy services, are reasonable and necessary;
v. The following treatment plans are payable pursuant to s. 38(11)2 of the Schedule:
i. OCF-18 dated August 13, 2021 for an occupational therapy assessment;
ii. OCF-18 dated August 13, 2021 for an attendant care assessment;
vi. The applicant is entitled to interest in accordance with s. 51 of the Schedule; and
vii. The respondent is not liable to pay an award.
Released: December 19, 2024
__________________________
Ulana Pahuta
Adjudicator