Licence Appeal Tribunal File Number: 21-012452/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:
Sofia Loutsenko
Applicant
and
The Commonwell Mutual Insurance Group
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Sofia Loutsenko, Applicant
Olga Poznyakova, Paralegal
For the Respondent:
The Commonwell Mutual Insurance Group
Cecil Jaipaul, Paralegal
HEARD:
By Way of Written Submissions
OVERVIEW
1Sofia Loutsenko, the applicant, was involved in an automobile accident on February 29, 2020, and sought medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent, The Commonwell Mutual Insurance Group denied the treatment plans in dispute on the basis that the applicant sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The 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 limit and in the MIG? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.
ii. Is the applicant entitled to $2,630.32 ($3,930.32 less $1,300 approved) for physiotherapy services, proposed by Dr. Med Rehabilitation in a treatment plan/OCF-18 (“plan”) dated July 10, 2020?
iii. Is the applicant entitled to $1,998.50 for an attendant care-form 1 assessment, proposed by MedMax Assessment Centre in a treatment plan dated June 4, 2020?
iv. Is the applicant entitled to $3,999.00 for Botox injections, proposed by Dr. Rozen in a treatment plan dated August 16, 2021?
v. Is the applicant entitled to $2,200.00 for a chronic pain management evaluation, proposed by Alcat Assessments in a treatment plan dated February 3, 2021?
vi. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has failed to demonstrate that removal from the MIG is warranted. She has not provided sufficient medical evidence that her accident-related injuries fall outside the MIG. The respondent indicates that $108.15 remains under the MIG limit. It is not necessary to consider whether the plans for physiotherapy services, botox injections, attendant care assessment and chronic pain assessment are reasonable and necessary. As a result, there is no entitlement to interest, nor an award.
5The respondent’s denials of treatment plans dated July 10, 2020, June 4, 2020, August 16, 2021 and February 3, 2021 were proper notice in accordance with s.38(8) of the Schedule and therefore, those treatment plans are not payable.
6The application is dismissed.
ANALYSIS
The applicant has failed to demonstrate that she suffers from accident-related injuries that warrant removal from the MIG
7Section 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 in accordance with the MIG. 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. In all cases, the burden of proof lies with the applicant.
8The applicant submits that she should be removed from the MIG based on the following accident-related physical and psychological injuries which prevent her recovery under the MIG limits:
a. Her diagnosis of chronic pain;
b. Her concussion and post-traumatic headaches, and;
c. Her psychological impairments.
9To this end, the applicant relies on the findings of a chronic pain assessment by Dr. Dima Rozen, clinical notes and records of Dr. Alexander Antonenko, treatment plans and records. The applicant relies on the clinical notes and records of her family physician, Dr. Antonenko which indicates her initial complaints of right shoulder, upper back, headaches, stress and insomnia.
10The applicant submits that she should be removed from the MIG on account of her accident-related concussion, chronic pain and psychological impairments. The applicant does not refer to any pre-existing conditions that would prevent her from achieving maximum recovery under the MIG limit. The applicant submits that she was diagnosed with a concussion, chronic post-traumatic headaches, stress, anxiety, insomnia and depressed mood. However, the applicant has not provided any supporting medical evidence of a diagnosis of concussion, post-traumatic headaches, psychological disorder or chronic pain.
11The applicant has not provided any supporting medical evidence of a concussion or chronic pain diagnosis. Although, in OCF-23 dated March 5, 2020, Dr. Marko Pavacic, chiropractor, describes a concussion and in report dated June 30, 2021, Dr. Rozen diagnoses chronic pain, no medical evidence corroborates these findings. Dr. Antonenko indicates that the applicant’s physical symptoms are occasional and controlled with over-the-counter medications. In addition, Dr. Rozen indicates that the applicant’s pre-existing back pain was aggravated by the accident. Since the applicant has only provided the clinical notes and records of Dr. Antonenko from one-month before the accident, there is no supporting medical evidence of a pre-existing back condition. Further, the applicant has not made any submissions of a pre-existing condition that would warrant removal from the MIG.
12The applicant also seeks removal from the MIG on psychological grounds. However, her treating physician does not provide a diagnosis of an accident-related psychological condition. Dr. Antonenko’s clinical notes indicate that the applicant’s sleep has stabilized on medication. Although, Dr. Rozen diagnoses chronic pain syndrome which includes mood and sleep disturbance, there are no corroborating medical findings of chronic pain syndrome.
13In response, the respondent submits that the applicant has not met her burden to provide medical documentation in support of accident-related injuries which fall outside the MIG limits. The respondent points to the clinical notes and records of Dr. Antonenko and his findings of full range of motion in the applicant’s back and shoulder after the accident. The respondent further submits that since Dr. Antonenko or any treating practitioner did not complete a Disability Certificate (OCF-3), they received no information regarding the applicant’s accident-related injuries. The respondent argues that the treatment plans completed by chiropractors, Dr. Kevin Bar and Dr. James Fung list concussion as an accident-related injury without providing the source of the diagnosis by a qualified medical practitioner. Specifically, Dr. Antonenko does not mention a diagnosis of concussion. In addition, the respondent submits that the applicant has failed to provide the requested productions and specifics of the award within the deadlines set by the Case Conference Report and Order.
14The respondent indicates that the applicant has been referred to specialists after the accident. They produced a consultation report dated May 21, 2021 from Dr. Harmeet Gill which indicates the applicant has bilateral eyelid heaviness which sometimes interferes with her field of vision. Dr. Antonenko referred the applicant to Dr. Gill regarding blepharoplasty. The applicant argues this condition is unrelated. The respondent also produced a referral letter dated January 5, 2021 to Newmarket Pain Clinic, however, there has been no evidence provided by the applicant that she has attended this clinic or whether the referral is accident-related.
15Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any concussion, chronic pain or psychological diagnosis.
Were the respondent’s denial of treatment plans proper under Section 38(8) of the Schedule?
16As an alternative argument, the applicant submits that the respondent did not properly deny the disputed treatment plans, in accordance with s. 38(8) of the Schedule.
17Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
18If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).
19The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
Sufficiency of respondent’s denials of OCF-18’s dated June 4, 2020 and July 10, 2020
20The applicant submitted an OCF-18 for physiotherapy services by Dr. Med Rehabilitation and an attendant care needs assessment by MedMax Assessment Centre, completed by chiropractors, Dr. Kevin Bar and Dr. James Fung. The respondent denied these treatment plans by way of Explanation of Benefits (“EOB”s), dated July 24, 2020 and July 27, 2020.
21The language used in the two EOBs is substantially similar, in that the respondent duplicated the list of injuries in the OCF-18 and compared them to the criteria in the MIG and concluded that the injuries fall within the MIG. The respondent requests further details regarding the specific list of injuries, to include the testing and the qualifications of the health professional in making the diagnoses of concussion, chronic post-traumatic headaches, disturbances of smell and taste and sciatica. The respondent further requests compelling medical evidence of a pre-existing medical condition documented by a health practitioner that would prevent maximal recovery under the MIG. The respondent also inquires about the applicant’s restricted ability to perform pre-accident employment.
22Here, the respondent has requested information about the insured’s condition and functional limitations that the insurer does not have but requires to determine whether the applicant’s injuries fall outside the MIG.
23The respondent has specifically requested further information about the concussion diagnosis and sciatica. As such, I find the respondent’s reference to the MIG and specific reference to the applicant’s concussion, chronic post-traumatic headaches, disturbances of smell and taste and sciatica in the EOB dated July 24, 2020 and July 27, 2020 were valid denials of the OCF-18’s dated June 4, 2020 and July 10, 2020.
Sufficiency of respondent’s denials of OCF-18’s dated February 3, 2021 and August 16, 2021
24The applicant submitted an OCF-18 dated February 3, 2021 for a chronic pain assessment by Alcat Assessments and an OCF-18 dated August 16, 2021 for botox injections by Dr. Rozen. The applicant argues that the respondent denied these treatment plans on HCAI but failed to provide an EOB.
25The respondent submits that denial letters dated May 18, 2021 and August 27, 2021 were sent to the applicant and her representative by regular mail and email correspondence. The applicant agrees that the denial notice was due 10 business days after the OCF-18 was submitted on May 3, 2021, or by May 18, 2021. The respondent provided the denial letter dated May 18, 2021 regarding OCF-18 dated February 3, 2021, requesting further information regarding the applicant’s ability to return to her pre-accident employment.
26The respondent also provided the denial letter dated August 27, 2021 regarding the OCF-18 dated August 16, 2021. Both denial letters provide a review of Dr. Antonenko’s records which fails to provide evidence of a pre-existing condition or accident-related condition to remove the applicant from the MIG. The respondent also requested further information regarding completion of OCF-18’s dated February 3, 2021 and August 16, 2021 by Dr. Rozen. I have no reason to believe that the applicant did not receive the correspondence. In fact, the applicant replied to the respondent’s correspondence dated August 27, 2021.
27The respondent has specifically requested further information about the applicant’s pre-existing condition or other condition that the insurer does not have but requires to determine whether the applicant’s injuries fall outside the MIG. As such, I find the respondent’s reference to the MIG and specific reference to the applicant’s pre-existing condition in the EOB dated May 18, 2021 and August 27, 2021 were valid denials of the OCF-18’s dated February 3, 2021 and August 16, 2021.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful on removal from the MIG or the treatment plans, no benefits are owing and interest does not apply.
Award
29The applicant argues that the respondent filed their submissions 4 days late, leaving only 3 days for the applicant to file a reply. The applicant did not request an extension to file a reply. I find that the applicant has not suffered any prejudice in filing her reply. By reply submission, the applicant withdrew issue 2 as listed in the Case Conference Report and Order. Since the issue is no longer in dispute, the requested award for a withdrawn issue is not appropriate under the circumstances.
30The applicant sought an award under s. 10 of Reg. 664 but did not provide any submissions for an award other than the denial notice did not comply with s. 38(8). 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. I find an award is not appropriate because the respondent did not unreasonably withhold payment as the denials were based on reasonable, objective assessments of the applicant. Thus, an award under s.10 of O. Reg. 664 is not warranted.
ORDER
31For the reasons outlined above, I find that:
a. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit;
b. The respondent’s denials of the OCF-18’s dated July 10, 2020, June 4, 2020, February 3, 2021 and August 16, 2021 were proper notice in accordance with section 38 (8) of the Schedule and therefore, are not payable and interest, nor an award apply, and;
c. The application is dismissed.
Released: July 23, 2024
Lisa Holland
Adjudicator