Licence Appeal Tribunal File Number: 22-006004/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:
Qi He
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Aylina Dhanji, Counsel
For the Respondent: Connor Duprey, Counsel
HEARD: By way of written submissions
OVERVIEW
1Qi He, the applicant, was involved in an automobile accident on November 21, 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, Security National 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. Is the applicant entitled to $4,416.71 for chiropractic services, proposed by Total Recovery Rehab Centre (TRRC) in a plan submitted on June 14, 2021?
ii. Is the applicant entitled to $4,300.08 for chiropractic services, proposed by TRRC in a plan submitted on August 23, 2021?
iii. Is the applicant entitled to $4,000.00 ($14,750.81 less $10,750.81 approved) for catastrophic assessment, proposed by Somatic Assessment and Treatment Clinic in a plan submitted on October 25, 2022?
iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant confirmed in his submissions that Issue #1 as listed in the Case Conference Report and Order dated March 9, 2023 (“CCRO”) has been withdrawn.
RESULT
4I find that:
i. The applicant is entitled to the treatment plans for chiropractic services with interest in accordance with s. 51 of the Schedule.
ii. The applicant is not entitled to the outstanding balance of the OCF-18 for a catastrophic assessment.
iii. The respondent is not liable to pay an award.
PROCEDURAL ISSUES
5I find that the clinical notes and records (“CNRs”) of Dr. Ronald Wilson, neurologist, included as Tab 8 and Tab 9 of the applicant’s submissions were late-produced by the applicant. As a result, I rely on Rule 9.4 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”) and grant the respondent’s request to exclude the CNRs contained in Tab 8 and Tab 9 of the applicant’s submissions.
6In its responding submissions for this written hearing, the respondent argues that it received the CNRs of Dr. Wilson for the first time on November 2, 2023, the date the applicant served his written hearing submissions. Prior to receipt of the CNRs, the respondent believed that the applicant had not been to see Dr. Wilson post-November, 2020. It submits that the CNRs were ordered to be produced pursuant to the CCRO, that it would suffer significant prejudice if this late-served evidence was admitted and that the applicant exhibited bad faith behaviour by not disclosing these records previously.
7In his reply submissions the applicant argues that Dr. Wilson’s CNRs are highly relevant to the issues in dispute as they directly link the applicant’s degenerative changes in his spine to the subject accident. He submits that excluding these medical records would cause him significant prejudice. The applicant further argues that the respondent had requested updated records and information during settlement discussions and this was the reason that he only requested the records a few days prior to the preparation of his hearing submissions.
8Pursuant to the CCRO, within 60 days of the case conference the applicant was required to provide all CNRs of doctors and specialists, from 1-year pre-accident “to date”, being the date of the case conference. The relevant CNRs of Dr. Wilson appear to be created, for the most part, after the date of the case conference and after the production order deadline. Therefore, these medical records are new evidence created outside of the CCRO window. I agree with the respondent that it would suffer significant prejudice if this late-disclosed new evidence was admitted.
9To the extent that Dr. Wilson’s CNR entries occurred after the production deadline, it was open to the applicant to seek the Tribunal’s permission to rely on the new documents. No such motion was brought by the applicant prior to the hearing, and no evidence has been provided by the applicant that he made any attempt to minimize the prejudice to the respondent.
10Such actions can frustrate the Tribunal’s ability to conduct a fair and efficient process that allows for effective participation by the parties. Although I acknowledge the prejudice to the applicant if the CNRs were excluded, the respondent has been left in a position where it has been deprived of crucial medical evidence and is in a position where it is without a medical opinion on the documents provided. The prejudice to the respondent if the CNRs are admitted cannot be cured within this hearing because the time to disclose documents and make submissions has expired. The applicant has not provided a valid reason as to why no effort was made to provide these medical records prior to submission date.
11On this point, I am guided by the Divisional Court decision Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986. In this decision, the Court similarly considered new evidence, where one month prior to the commencement of the arbitration the claimant delivered two new orthopedic opinions. The Court noted that this left the insurer with no practical ability to respond to the opinions and found that such a denial of the right to make a full response was a violation of procedural fairness. I find that to admit the evidence in these circumstances would similarly give rise to a breach of procedural fairness.
12As a result, I rely on Rule 9.4 and agree with the respondent’s request to exclude the CNRs contained in Tab 8 and Tab 9 of the applicant’s submissions.
ANALYSIS
13Sections 14 and 15 of the Schedule set out that an insurer is liable to pay medical benefits that shall cover all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
14The 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.
The OCF-18s for chiropractic treatment are reasonable and necessary
15The applicant submitted two OCF-18s dated June 14, 2021 and August 23, 2021 for multi-disciplinary treatment. The treatment plans proposed a combination of chiropractic, acupuncture treatment and exercise therapy. The applicant submits that this ongoing treatment is needed to address his severe lower back pain, neck pain and leg pain.
16The applicant argues that he was seriously injured in the accident, when he was hit as a pedestrian by a car. As a result, the applicant submits that he continues to suffer from ongoing back pain with associated left lower limb radiculopathy, bilateral leg, neck and shoulder pain and headaches. He argues that his pain and radiculopathy have gotten worse over the years, necessitating the additional treatment.
17The applicant concedes that on June 24, 2020 an MRI of the thoracic and lumbar spine found a non-cancerous tumour that is possibly a schwannoma at the T12 level. However, he notes that Dr. Jefferson Wilson, neurosurgeon (not to be confused with Dr. Ronald Wilson, neurologist) found that the applicant suffered from two different diagnoses. The previously mentioned tumour, and spondylolisthesis, degenerative disc disease with bilateral severe foraminal stenosis at the level of L4-L5. Dr. Wilson found that the nonoperative treatment for his low back issue would be physical therapy.
18The respondent submits that neither of the OCF-18s are reasonable and necessary. Although it concedes that the applicant suffers from back impairments, it argues that they are not accident-related. Firstly, with respect to the applicant’s degenerative disc disease, the respondent argues that pre-and post-accident diagnostic imaging show essentially no change. A January 19, 2016 lumbar X-ray found moderate degenerative disc disease at L5-S1, and spondylolysis of L5. X-rays taken soon after the accident showed moderate to severe degenerative disc disease at the L5-S1 level.
19Further, the respondent argues that the applicant’s back pain increased post-accident due to the non-cancerous tumour identified at the T12 level. It submits that the applicant’s neuropathic pain post-accident is from compression of the conus by this tumour. As such, the respondent relies on multiple s. 44 assessments to argue that the applicant had sustained only soft tissue strains and sprains of the lumbar spine, knee and left shoulder and that physical treatment is not warranted.
20I find that the applicant has established that the OCF-18s in dispute are reasonable and necessary.
21The medical record establishes that post-accident, the applicant consistently reported low back pain. Although the applicant was diagnosed with the non-cancerous tumour, Dr. Jefferson Wilson, neurosurgeon, also identified the spondylolisthesis, degenerative disc disease with bilateral severe foraminal stenosis at the level of L4-L5 and recommended physical therapy for his back impairments.
22On November 22, 2021, the applicant saw Dr. Raphael Chow, physiatrist, for his ongoing left hip, shoulder and back pain. Dr. Chow reviewed the diagnostic imaging, including the MRI of the tumour, and found that the applicant’s low back pain is likely due to “back strain” and left SI dysfunction. Although the respondent disputes that any of the physical impairments revealed on the diagnostic imaging are caused by the accident, at a minimum, its s. 44 assessors have consistently found that the applicant has sustained accident-related strains and sprains of the back. I note that the applicant’s treating physiatrist, Dr. Chow, found that the applicant’s ongoing low back pain was due to such a strain, rather than due to the presence of the tumour. As such, I find that the applicant has led sufficient evidence linking his low back pain to the subject accident.
23The two OCF-18s in dispute propose a combination of physical treatment to meet the stated goals of pain reduction, increase in strength and increase in range of motion. The respondent argues that the applicant has only experienced minimal improvement in pain symptoms as a result of such treatment, noting that he reported to its s. 44 assessor Dr. Ko, physiatrist, that the therapy provides mild relief from the pain that lasts 2-3 days.
24It is well-settled that pain relief is a valid treatment goal. Although the respondent argues that the applicant has reported minimal improvement with physical therapy, I do not find improvement of 2-3 days post session to be insignificant. Further, the applicant has consistently reported to other doctors that the physical therapy he received was helpful. For example, he reported to his family physician Dr. Chan on July 28, 2020 that he had attended physiotherapy post-accident and found it helpful. A number of the applicant’s treating specialists have recommended physical therapy.
25Moreover, despite the respondent’s position that the applicant has consistently attended such treatment with no benefit, it appears that there have been gaps in his attendance. He reported to Dr. Chan that he had stopped attending treatment in March 2020, as he was worried due to COVID. As of November 2020 it appears that he still reported that he was hesitant to re-start due to COVID concerns. As such, this is not a situation where the applicant has received uninterrupted treatment.
26On March 9, 2021 Dr. Jefferson Wilson recommended physical therapy and noted that the applicant reported that massage therapy eased his pain. The respondent’s IE assessor Dr. Ko noted in his physiatry IE report dated November 29, 2021 that the applicant now reported a worsening of pain symptoms. Dr. Ko opined that he was not certain whether the lower back pain was getting worse due to the tumour growing, or if the mechanical back pain was getting worse due to the fact that the applicant was getting weaker in the core. Dr. Ko further reported that it would be premature for him to comment on the applicant’s back pain.
27As such, I am persuaded by the applicant’s evidence that an additional course of physical therapy is warranted to see if it can assist in alleviating his pain symptoms.
The applicant is not entitled to the outstanding balance for the catastrophic assessments
28The applicant submitted an OCF-18 for three catastrophic (“CAT”) assessments in the amount of $14,750.81. The respondent approved $10,750.81 and denied the $4,000.00 portion relating to individual file review costs for each assessor.
29I agree with the respondent that the individual file review costs for each assessor are not reasonable and necessary. I agree with the decisions cited by the respondent, F.A.-W vs. Aviva General Insurance Company, 2020 CanLII 12776 (ONLAT) and Han v. Aviva General Insurance, 2023 CanLII 9225 (ONLAT) which held that fees associated with file review are captured in the $2,000.00 funding limit.
30I am not persuaded by the applicant’s argument that the monetary limit of $2,000.00 specified in s. 25(5)(a) of the Schedule does not apply to an individual file review, or in the alternative that such a file review constitutes a separate and distinct assessment. Rather, individual file review costs have consistently been found by this Tribunal to be subsumed within the monetary limit in s. 25(5)(a) of the Schedule.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest in accordance with s. 51 for the two chiropractic OCF-18s in dispute.
Award
32The 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. The applicant requests an award on the basis that he has sustained serious injuries, the respondent acted in a high-handed manner, ignored medical records and had never paid a weekly benefit to the applicant.
33I do not find that the applicant has established a basis for an award. While I did find that the applicant is entitled to the two chiropractic treatment plans, I agree with the respondent and its cited caselaw that an award is not necessarily warranted simply because an insurer “got it wrong”.
34Rather, the applicant must lead evidence that the behaviour of the insurer was excessive, imprudent, stubborn, unyielding or immoderate. The applicant has not led sufficient evidence in this regard. Moreover, although the applicant argues that the respondent ignored medical records, it is clear that key medical evidence, namely the CNRs of Dr. Ronald Wilson, were not provided to the respondent prior to the applicant’s submissions for this hearing. As such, I do not find that the applicant has led sufficient evidence to prove that the respondent’s conduct warrants an award.
ORDER
35I find that:
i. The applicant is entitled to the treatment plans for chiropractic services and interest in accordance with s. 51 of the Schedule.
ii. The applicant is not entitled to the outstanding balance of the catastrophic assessment.
iii. The respondent is not liable to pay an award.
Released: June 13, 2024
Ulana Pahuta
Adjudicator