Licence Appeal Tribunal File Number: 22-004787/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:
Nicole Brown
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Charles Flaherty, Counsel
For the Respondent: David Raposo, Counsel
HEARD: By way of written submissions
OVERVIEW
1Nicole Brown (the "Applicant") was involved in an automobile accident on June 4, 2021, and sought benefits from Co-operators General Insurance Company (the "Respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").
2The Respondent determined that the Applicant sustained a minor injury as a result of the accident and subjected her to the Minor Injury Guideline (the "MIG"). Following a course of insurer's examinations ("IEs"), the Respondent later determined that the Applicant's injuries fall outside the definition of a minor injury and stopped subjecting her to the MIG and the $3,500.00 funding limit for a minor injury.
3The Applicant takes the position that she sustained a concussion as a result of the accident and should never have been subjected to the MIG. She submits that the characterization of her injuries as falling within the minor injury definition resulted in the unreasonable withholding and delayed access to benefits. The Respondent takes the position that it was unclear whether the Applicant sustained a concussion as a result of the accident and that it's adjusting of her claim did not result in the unreasonable withholding of benefits. The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
4The issues in dispute are:
i. Is the Applicant entitled to an award pursuant to section 10 of Regulation 664?
ii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the Applicant is not entitled to an award, nor interest. The Application is dismissed.
ANALYSIS
Award
6Pursuant to section 10 of Regulation 664, an award of up to 50% of the amounts withheld may be payable by the Respondent if it is determined that it unreasonably withheld or delayed payment of a benefit. Awards are determined on an individual basis and generally depend on a finding that the Respondent's withholding or delay was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the Applicant to demonstrate that the Respondent's actions or inactions led to the unreasonable withholding or delay of benefits.
7The Applicant is correct in identifying that a concussion is an injury that is not included in the minor injury definition. As a result, a person who sustains a concussion as a result of an accident should not be subject to the MIG.
8For the following reasons, I find that the Applicant is not entitled to an award.
It is unclear whether the Applicant sustained a concussion in the accident
9The Applicant submits that she should not be subject to the MIG because she sustained a concussion as a result of the accident, and it is an injury that is not included within the minor injury definition. Her submissions highlight that two treatment plans were denied in full or in part as a result of being subject to the MIG: the treatment plan dated April 1, 2022 included $1,123.50 in denied goods and services and the treatment plan dated September 2, 2022 denied $1,296.75. Thus, the Applicant seeks payment of an award of an amount up to $1,210.13, plus interest.
10The Respondent submits that the Applicant's initial reports of a concussion were solely self-reported and that the initial medical information it received came from healthcare practitioners who are not qualified to diagnose concussions. It notes that it no longer subjected the Applicant to the MIG and the funding limit upon receipt of the IE report by Dr. M. Angel, neurologist, dated January 16, 2023, and advised her of same via letter dated January 19, 2023.
The Applicant is not a regulated healthcare professional
11The Applicant advised the Respondent at the outset of her claim that she sustained a concussion as a result of the accident. However, the Applicant is not a medical professional and is not qualified to diagnose concussions. It remains the Applicant's responsibility to provide information to support her claim and it is reasonable in this instance for the Respondent to ask for confirmation from a medical professional that the Applicant sustained a concussion.
The Applicant's medical records do not clearly identify a concussion
12The Applicant submitted medical records to the Respondent, but they did not clarify whether she sustained a concussion as a result of the accident. On or around January 27, 2022, the Applicant disclosed to the Respondent the clinical notes and records ("CNRs") from her family physician, treatment facility, and the hospital she attended two days after the accident. Yet, none of the records include a clear diagnosis of concussion. The hospital records indicate that concussion protocol was engaged and there is a query that the Applicant sustained a concussion, but imaging showed no acute head injury and none of the records state unequivocally that she sustained a concussion. CNRs from the treatment facility the Applicant attended following the accident state that the Applicant sustained a concussion, however none of the service providers are qualified to diagnose a concussion. It appears that reference to a concussion is based solely on the Applicant's self-reports, which hold no weight when considering whether she sustained a concussion as a result of the accident.
13The Applicant's family physicians CNRs do not clearly indicate that she sustained a concussion as a result of the accident. The CNRs demonstrate that the Applicant attended at the family physician's office three days following the accident, complaining of a concussion. The examination notes from that visit are relatively unremarkable but concludes with "impression: concussion with associated whip lash". I am not persuaded that the term "impression" is the same as diagnosis. Nevertheless, the ambiguity continues in the note from a telephone consultation on September 28, 2021. The records from that visit indicate that the Applicant experienced vision issues related to a vitreous hemorrhage/cataract and queried whether it is the cause of her headaches, or the subject accident. Altogether, the CNRs are not as clear as the Applicant purports them to be in her submissions and it is reasonable for the Respondent to exercise its right to have a regulated healthcare professional examine the Applicant.
Examining the Applicant and following that opinion is reasonable
14The Schedule provides the Respondent with the statutory right to have the Applicant examined by a regulated healthcare professional, pursuant to section 44. Here, it was reasonable for the Respondent to seek the opinion from a regulated healthcare professional because the CNRs provided did not include a clear diagnosis and indicated that some of the Applicant's symptoms following the accident may be from pre-existing conditions. The Respondent arranged for a physician to examine the Applicant at first and followed the assessor's recommendation for a neurological assessment. The neurological assessment occurred and resulted in a recommendation that the Applicant not be subject to the MIG and the $3,500.00 funding limit due to her history of cervical spine stenoses and migraine headaches.
No evidence the Respondent ignored caselaw
15I find no evidence demonstrating that the Respondent ignored caselaw when adjusting the Applicant's claim. The Applicant submits a list of cases where the adjudicator determines that a concussion is not an injury that is included in the minor injury definition and states that the Respondent has ignored the relevant jurisprudence. I disagree. As outlined above, the Applicant's medical record does not include a clear diagnosis of a concussion, and references in the adjuster's log notes pertaining to a concussion stem from the Applicant's self-reports. Based on this, I find it reasonable for the Respondent to seek an opinion from a regulated healthcare professional. The Respondent did so, and followed their recommendations and determined that the Applicant should not be subject to the MIG.
16Considering the totality of the dispute, I conclude that the Respondent did not unreasonably withhold or delay the payment of benefits due to its characterization of the Applicant's injuries as being predominantly a minor injury. I find that the Respondent changed its position on the issue once presented with clear evidence to the contrary. This is not the imprudent, inflexible, or immoderate behaviour that warrants an award. Accordingly, I find no award is payable.
Interest
17Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that nothing it payable, it follows that no interest is payable.
CONCLUSION AND ORDER
18I find no evidence demonstrating that the Respondent unreasonably withheld or delayed the payment of benefits. As a result, the Applicant is not entitled to an award, nor interest.
19The application is dismissed.
Released: June 13, 2024
Brian Norris
Adjudicator