Huber v. Allstate Insurance Company of Canada, 2024 CanLII 41012

Citation: Huber v. Allstate Insurance Company of Canada, 2024 CanLII 41012

Licence Appeal Tribunal File Number: 22-003147/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:

Tina Huber

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Raymond Selbie

APPEARANCES:

For the Applicant: Elvis Viskovic, Paralegal

For the Respondent: Aleah Thomas, Counsel

HEARD: In Writing

OVERVIEW

1Tina Huber, the applicant, was involved in an automobile accident on November 6, 2019 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, Insurer, 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 predominately minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3500.00 Minor Injury Guideline (MIG)? Note: The parties agree that the MIG limits have not been exhausted.

ii. Is the applicant entitled to $3,841.09 for psychological services, proposed by Advanced Healthcare Management Inc. in a treatment plan /OCF-18 (“plan”) dated December 28th, 2020?

iii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Advanced Healthcare Management Inc. in a plan dated November 9,2020?

iv. Is the responded liable to pay an award under S. 10 of O. Reg. 664 because it unreasonably withheld or delayed payment to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant sustained a chronic pain impairment and a psychological impairment that exceed the definition of a minor injury of found in the Schedule.

4I find that the applicant is entitled to the medical benefits described in paragraphs 2.ii and 2.iii together with interest pursuant to s. 51 of the Schedule.

5I find that the applicant is not entitled to an award under Regulation 664.

6I find that the applicant is entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (MIG)

7The MIG establishes a framework available to injured persons who sustained a minor injury as result of an accident. A ‘minor injury’ is defined in s. 3(1) of the Schedule as, ‘one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration subluxation, and includes any clinically associated sequelae to such injury’. The terms strain, sprain, subluxation, and whiplash associated disorders are as defined in the Schedule.

8Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate with compelling evidence that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide a psychological impairment or chronic pain with a fundamental impairment. The burden to establish entitlement to coverage beyond the $3,500.00 cap rests on the applicant on the balance of probabilities.

9The respondent submitted that the applicant’s injuries are minor based on the pain and psychological findings of the insurer examinations of Dr. Saplys dated June 9, 2021, (orthopaedic ) and Dr. Saunders dated June 2021, (psychological). The respondent further submits that the applicant had previously refused to comply with requests for medical evidence of her complaints.

10The applicant submits that both insurer examinations were completed without the doctors being privy to the ongoing clinical notes and records prepared by Dr. Mang and those of Dr. Langis completed on December 16, 2020, which had been sent to the respondent by e-mail on April 23, 2021. The respondent then arranged for two insurer examinations but failed to forward the medical information provided by the applicant. The applicant further submits that she had signed a form OCF-5 (Permission to Disclose Health Information) which allowed the respondent’s adjuster to obtain ongoing medical information and that this would have assured current medical information be available to the insurer examiners.

11The insurer examiners Dr. Saplys and Dr. Saunders both concluded that there was no evidence which supports a functional impairment related to either physical or psychological symptoms that could not be treated under the MIG. Both doctors conducted their examinations without the benefit of the following findings all of which were made available to the respondent on April 23, 2021: (1) Dr. Mang which in the April 21, 2020, entry notes ‘pain which is continuous and now chronic.’; in the July 6, 2020, finding that the applicant was ‘having meltdowns every day-there is pain in both shoulders’ and the opinion that the applicant was suffering a flare-up of her pre-existing osteoarthritis which had been in remission prior to the accident; (2) the referral to Dr. Karasik, a treating rheumatologist; and likely (3) the findings of Dr. Langis wherein he concluded that the psychological impairment the applicant ‘sustained --- are significant enough to conclude that she does not fall under the Minor Injury Guidelines”.

12I find that the insurer examinations cannot be relied upon as comprehensive when both were prepared without the benefit of the medical information from the applicant’s medical doctors. I find that on the evidence of both psychological and chronic pain impairment [s. 18.(1)] as well as the aggravation of a pre-existing condition of osteoarthritis [s. 18(2)]; the applicant requires treatment outside of the MIG.

Psychological services at Advanced Healthcare Management Inc. for $3,841.09

13The applicant submitted an OCF-18 (‘plan’) dated November 9, 2020, for psychological assessment from Advanced Healthcare Management Inc. The applicant submitted the request to the respondent and it was denied by the respondent on December 1, 2020. The applicant decided to proceed as she felt the need for the assessment. Dr. Langis found that she had ‘substantial cognitive difficulties---following the accident---she requires a full Neuropsychological Assessment.’ Further Dr. Langis opined that ‘Psychological impairments that Mrs. Huber sustained as a result of the accident are significant enough to conclude that she does not fall under the Minor Injury Guidelines’.

14The applicant submits that the clinical notes and records of Dr. Mang confirmed her chronic pain as well as daily melt-downs due to same. The applicant proceeded with the service even though the respondent had denied it. The assessment of Advanced Healthcare Management Inc. had required a detailed pre-screen outlining the physical and psychological issues of the applicant. The applicant further points to the IE assessments of Dr. Saplys (orthopaedic) and Dr. Saunders (psychological) both of which were conducted without having reviewed the medical records of the applicant.

15The respondent submits that the assessment which preceded this service was close to a year after the applicants only complaint to her family doctor about emotional or psychological concerns. The respondent further points to previous psychological issues predominantly concerning relationship issues with her long-term spouse. The respondent further relies on the findings of the insurer examination of Dr. Saunders wherein, without the benefit of the applicant’s medical records, he indicated that there is ‘no evidence of accident related conditions that meet the diagnostic threshold of DSM nor any pre-existing psychological condition sufficient to require formal treatment or assessment intervention’.

16Sections 14-16 of the Schedule provides that the insurer shall pay for medical and rehabilitation benefits to or on behalf of the applicant so long as the applicant sustains an impairment as the result of the accident, and the expense of the incurred benefit is reasonable and necessary. I find that this treatment meets these criteria.

Psychological assessment proposed by Advanced Healthcare Management Inc. for $2,486.00

17The applicant submitted an OCF-18 to the respondent November 9, 2020, requesting approval of psychological services. This request was denied by the respondent on December 1, 2020. The applicant proceeded by the assessment with Dr. Langis.

18The applicant submits that the assessment was in-depth and having contained a detailed pre-screening outlining her physical and psychological issues. The applicant submits that the findings of Dr. Langis confirmed the need for 12 sessions of cognitive behavioural therapy, a neuropsychological assessment and a driving evaluation assessment and the applicant was content to rely on this advice. The applicant further submits that there were psychological concerns expressed to Dr. Mang as follows: November 14, 2019,‘emotions are hard to control and pt gets very angry and irritable at work’; July 6, 2020, ‘having meltdowns every day’.

19The respondent submits that overall, the evidence of the applicant is an attempt at ‘trial by ambush’ as the applicant failed to provide medical records in accordance with the CCRO which it claims prejudices the respondent and should be excluded.

20Upon review of the CCRO, the psychological assessment was listed as an issue in dispute and the respondent had considered it. Further, the CCRO indicates that ‘The respondent did not have any production requests for the applicant’. Rather than ‘trial by ambush’, the respondent was aware of the assessment and made no request for documentation by way of production. (See Rule 9.2.1).

21Rule 9.3 provides that the Tribunal may admit evidence if the party fails to comply with the Rule and directs me to certain relevant factors in deciding on the admittance of documentations or things that were not served in accord with the Rules. I find that the disputed issue of the assessment and the treatment plan recommended by Dr. Langis were known to the respondent; the applicant did not oppose the disclosure of same; any prejudice to the respondent can be mitigated by any other order and they are relevant to the issues in dispute. (See Rule 9.3).

22Sections 14-16 of the Schedule provides that the insurer shall pay for medical and rehabilitation benefits to or on behalf of the applicant so long as the applicant sustains an impairment as the result of the accident, and the expense of the incurred benefit is reasonable and necessary. I find that this assessment meets these criteria.

An award under s. 10 of O. Reg 664 because the respondent unreasonably withheld or delayed payment to the applicant

23The 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. There appears to have been some running battle between the adjuster for the respondent and the applicant which resulted in resolution through the Insurer Ombudsman on April 23, 2021. The applicant submits that multiple sets of supportive medical records were sent to the adjuster via e-mail. Only then did the adjuster set up insurer examinations. The medical records received by the adjuster were not forwarded to the insurer examiners who proceeded on two examinations without the clinical notes and records from the applicant’s medical doctors. The applicant further submits that the respondent did have a signed OCF-5 shortly after the accident with which it could have obtained medical information.

24The Respondent submits that the failure of the applicant to produce records on a timely basis as set forth in the CCRO is fatal to their use in the hearing and that the actions of the applicant preclude her from claiming an award.

25I find that, given the passage of events between the parties, there is insufficient evidence of egregious conduct by the insurer as outlined in [K.M.] v. Aviva Insurance Canada, 2023 CanLii 60250 (ON LAT) to warrant an award. Further, any prejudice occasioned by the respondent can be mitigated by this finding on the award issue in dispute. There will be no award pursuant to Regulation 664.

Interest

26Considering the treatment plans are reasonable and necessary, it follows that the applicant is entitled to interest on these plans pursuant to s. 51 of the Schedule.

Order

27I find and order that:

i. The applicant sustained a chronic pain and a psychological impairment that are not predominantly minor injuries as defined in the Schedule;

ii. The applicant is entitled to $3,841.09 for psychological services, proposed by Advanced Healthcare Management Inc. in a treatment plan/OCF-18 (“plan”) dated December 28, 2020;

iii. The applicant is entitled to $2,486.00 for a psychological assessment, proposed by Advanced Healthcare Management Inc. in a plan dated November 9, 2020;

iv. The respondent is not liable to pay an award under S. 10 of O. Reg. 664;

v. The applicant is entitled to interest on any overdue payment of benefits.