Ferrier v. Economical Insurance Company, 2024 CanLII 870

Licence Appeal Tribunal

Citation: Ferrier v. Economical Insurance Company, 2024 CanLII 870 Licence Appeal Tribunal File Number: 21-014606/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:

Michael Ferrier Applicant

and

Economical Insurance Company Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Donata Di Iorio, Counsel For the Respondent: Yann Grand-Clement, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Michael Ferrier (the “applicant”) was involved in a motor vehicle accident on August 25, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Economical Insurance Company (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. 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 of the MIG?
2. Is the applicant entitled to $1,803.73 for chiropractic services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 submitted April 28, 2020?
3. Is the applicant entitled to $2,000.00 for a medical assessment, proposed by Prime Health Care Inc. in a treatment plan/OCF-18 submitted March 23, 2021?
4. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Prime Health Care Inc. in a treatment plan/OCF-18 submitted April 26, 2021?
5. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Prime Health Care Inc. in a treatment plan/OCF-18 submitted March 28, 2021?
6. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant is removed from the MIG, as he has met his burden and demonstrated that his injuries fall outside of the definition of a minor injury in the Schedule. ii. The applicant is not entitled to $1,803.73 for chiropractic services in a treatment plan submitted April 28, 2020. iii. The applicant is not entitled to $2,000.00 for a medical assessment in a treatment plan submitted March 23, 2021. iv. The applicant is not entitled to $2,200.00 for a psychological assessment in a treatment plan submitted April 26, 2021. v. The applicant is entitled to $2,000.00 for a chronic pain assessment in a treatment plan submitted March 28, 2021, plus benefits on any overdue and incurred amount, pursuant to s. 51 of the Schedule. vi. The respondent is not liable to pay an award.

ANALYSIS

The Minor Injury Guideline (“MIG”)

4Section 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 minor injuries. 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.”

5An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

6The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.

7In this instance, the applicant submits that he suffered a right knee injury in the accident that resulted in a “horizontal tear both centrally and peripherally along the posterior horn of the medical meniscus,” as well as an “oblique undersurface tear peripherally in the meniscal body.” These injuries required surgical repair. The applicant also argues that he suffers from chronic pain, psychological symptoms including anxiety, depression, and sleep disorder, and that the accident exacerbated a pre-existing condition of arthritis. He submits that all of these conditions warrant removal from the MIG.

8In response, the respondent contends that the applicant has failed to meet his onus in establishing that he should be removed from the MIG. It argues that the medical evidence substantiates only that the applicant suffered uncomplicated soft-tissue injuries as a result of the accident. Further, the respondent submits that there is no evidence that the subject accident caused the applicant’s right knee issues, and that he did not suffer any psychological conditions as a result of the accident. Accordingly, it requests that the applicant be held within the MIG.

The applicant is removed from the MIG

9I find that the applicant has met his onus and demonstrated that his accident-related injuries and impairments warrant removal from the MIG.

The applicant suffered a right knee injury in the accident

10The applicant has substantiated his claims that he sustained a right knee injury as a result of the accident that involved tears of the medial meniscus and the meniscal body. This injury is not included in the definition of a minor injury as detailed in s. 3(1) of the Schedule. As a result, the applicant is removed from the MIG and its $3,500.00 limit on treatment.

11Much of the MIG dispute, in my view, comes down to differing opinions on the cause of the applicant’s right knee injury. The applicant submits that the right knee injury was the result of the accident, with his pre-existing arthritis being a contributing factor. The respondent counters that the applicant did not complain of right knee issues immediately post-accident and that the applicant has not provided sufficient medical evidence to link the right knee injury to the accident. Instead, the respondent argues that the medical evidence indicates that the applicant suffered from pre-existing right knee degeneration and arthritis, which led to the meniscus tears and surgery.

12I concur with the position of the applicant, as the medical evidence supports his claim that his right knee was injured as a result of the accident.

13First, the applicant has directed me to evidence that he suffered an injury to his right knee in the subject accident. To counter the respondent’s assertion that the applicant did not report any knee issues post-accident, the applicant noted in reply submissions that the clinical notes and records (“CNRs”) of Brampton Civic Hospital from the day of accident note that the applicant “had pain/small laceration to right shin.” The applicant further noted in reply submissions that Dr. Christopher Gin, family physician, wrote in his CNRs on August 28, 2019 (three days post-accident) that he observed a “scrape on right knee/shin.”

14Accordingly, I accept the applicant’s contention that he injured his right knee/shin during the subject accident.

15Second, later medical evidence adduced by the applicant is consistent with regard to ongoing right knee pain. Dr. Gin referred the applicant to Dr. Sayed Sayedi, orthopedic surgeon, for an examination on January 9, 2020 regarding “right knee pain” that “started suddenly around 2 months ago after he was involved in a car accident.” In his report of the same date, Dr. Sayedi detailed the applicant as saying the right knee pain was on the medial side. The physician noted that the applicant displayed a severe limp on his right side and that he was using a cane. Dr. Sayedi also wrote that the applicant was unable to fully extend this knee and that there was “severe tenderness on the medial compartment.”

16Dr. Sayedi further noted in this report his belief that the applicant had “pre-existing arthritis in his right knee.” This is supported by a November 5, 2019 series of x-rays that indicated mild medial compartment and mild patellofemoral compartment osteoarthritis in the right knee. Due to his examination and diagnostic imaging, Dr. Sayedi concluded that the “new onset pain after [the] accident may be related to internal derangement of the knee.”

17As the respondent points out in submissions, this is not a definitive diagnosis that the accident was the cause of this injury. However, the wording of this report indicates that the accident played a significant role in the applicant’s right knee issues, and that his right knee pain newly developed after the accident. From what is before me, the applicant seems to have been essentially fully functional pre-accident, with no indication of mobility problems related to arthritis in his right knee. Almost immediately post-accident, however, the applicant’s right knee pain worsened, which caused him to walk with a limp, require the use of a cane, and seek extensive medical care.

18Given the medical evidence and the timeline, I cannot accept the respondent’s suggestion that the applicant would have required this same treatment because of progressing arthritis even if the accident had not occurred. In short, I do not believe the accident and the increase in the applicant’s right knee pain was coincidental.

19Third, all of the above medical treatment and investigation led to an MRI of the applicant that was ordered by Dr. Sayedi to investigate “[p]ain after car accident.” This MRI, conducted on February 22, 2020, revealed a “horizontal tear [of the medial meniscus] both centrally and peripherally along the posterior horn, and there is also an oblique undersurface tear peripherally in the meniscal body.”

20As a result of this MRI, Dr. Sayedi referred the applicant to Dr. Manoj Bhargava, orthopedic surgeon, who recommended physiotherapy and arthroscopic surgery at an appointment on March 12, 2020. On October 1, 2020, Dr. Bhargava performed a partial medial meniscectomy, debridement of traumatic flap lateral femoral condyle, and right knee arthroscopy. His post-operative diagnosis was that the applicant had suffered a right knee meniscus tear, patellofemoral grade 3 chondromalacia, and lateral compartment grade 3 chondromalacia.

21Although the respondent asserts that neither the reports of Dr. Sayedi and Dr. Bhargava, nor any others, fully make a connection between the meniscus tears and the accident, I reiterate that the applicant’s burden is to demonstrate that his injuries fall outside of the MIG on a balance of probabilities. Absolute certainty is not required. In my opinion, the hospital report from the day of the accident; family doctor CNRs; diagnostic imaging reports; results of the MRI investigation; reports of two orthopedic surgeons; and the resulting surgery combine to more than meet this burden of proof with regard to the applicant’s knee injury being the result of the subject accident.

22In addition, I prefer the above to the respondent’s medical evidence, largely in the form of two insurer’s examination (“IE”) reports completed by Dr. Louis Weisleder, orthopedic surgeon, dated February 23, 2022 and November 16, 2022. I assign limited weight to the Dr. Weisleder reports mainly because his opinion that the applicant’s injuries fell within the MIG did not properly take into account that the applicant had tears in the meniscus of his right knee.

23In his February 23, 2022 report, Dr. Weisleder acknowledged that arthroscopic surgery had been performed, but wrote in his conclusion that the applicant suffered “right knee strain injuries” as a result of the accident and found that the applicant had achieved maximum medical recovery from accident-related injuries. He mentions the meniscus tears and surgery early in his report following notes about the arthritis diagnoses, but does not assign a cause to them. After this, the tears and surgical repair are not mentioned. This is an odd omission, especially given how Dr. Weisleder writes only of a right knee strain in the conclusion where he states his finding that the applicant should be held within the MIG.

24For the reasons detailed above, the applicant is removed from the MIG and its $3,500.00 limit on treatment. As this ruling on its own is sufficient for the MIG determination, I decline to render findings on the applicant’s other MIG submissions regarding chronic pain and psychological impairments.

The Treatment Plans/OCF-18s

25To be entitled to a treatment plan/OCF-18 under ss. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

The applicant is not entitled to the treatment plan for chiropractic services submitted April 28, 2020

26I find that the applicant is not entitled to $1,803.73 for chiropractic services, in a treatment plan submitted April 28, 2020, as he has not demonstrated it to be reasonable and necessary.

27This treatment plan, which was completed by Dr. Rahim Jessa, chiropractor, of Complete Rehab Centre, recommends 17 sessions of therapy on multiple body sites. It also includes a documentation fee. The plan lists sprain and strain of the cervical, thoracic, lumbar spine, and shoulder joint, headache, and stress as the accident-related injuries and sequelae. Goals of the plan include pain reduction, increase in strength, increase in range of motion, an increase in cardiovascular fitness levels, and the improvement of lumbopelvic and cervicothoracic muscles, all to allow the applicant to return to the activities of normal living and to pre-accident work activities.

28The applicant submits that this treatment plan should be deemed reasonable and necessary to treat his accident-related injuries. He argues that the physiotherapy recommended in this plan is to continue with progress that he had been making regarding symptoms of pain. The applicant references his right knee injury as a major reason why this plan should be found to be reasonable and necessary.

29The respondent counters that the applicant’s injuries are soft tissue in nature and would have healed by the time that this treatment plan was proposed. It also references the IE reports of Dr. Weisleder, where the orthopedic surgeon found that the applicant sustained minor injuries and that he had reached maximal medical recovery. In addition, the respondent raises the causation issue regarding the right knee that I have already ruled on above.

30I am not persuaded by the applicant’s argument. While the applicant focuses on the right knee tear and a need to recover from arthroscopic surgery as the main reasons why this treatment plan should be approved, the plan was completed on January 27, 2020—before the right knee tear was discovered in the February 22, 2020 MRI and before the arthroscopic surgery was performed on October 1, 2020. Even though this plan was not submitted to the insurer until April 28, 2020, this was still five months before the knee surgery took place.

31As a result, I cannot accept the applicant’s contention that a plan is reasonable and necessary for the treatment of and recovery from a condition that had yet to be diagnosed via MRI or surgically repaired at the time the plan in question was completed.

32Accordingly, the applicant is not entitled to this treatment plan for physiotherapy, nor interest.

The applicant is entitled to the treatment plan for a chronic pain assessment submitted March 28, 2021

The applicant is not entitled to the treatment plan for a medical assessment submitted March 23, 2021

33I find that the applicant is entitled to $2,000.00 for a chronic pain assessment in a treatment plan submitted March 28, 2021, as he has demonstrated it to be reasonable and necessary.

34I find that the applicant is not entitled to $2,000.00 for a medical assessment in a treatment plan/OCF-18 submitted March 23, 2021, as he has not demonstrated it to be reasonable and necessary.

35These plans are very similar. Both propose physical assessments to assist the applicant with ongoing chronic pain as a result of the accident. In the March 23, 2021 plan, Dr. Tajedin Getahun, physician, recommends “a comprehensive orthopedic examination” along with a review of pre-existing conditions and available medical documentations. In the March 28, 2021 plan, Dr. Grigory Karmy, physician, and Dr. Chad Hefford, chiropractor, recommend a chronic pain assessment.

36Injuries and sequelae listed in each plan are similar to those noted above in the chiropractic treatment plan. They include sprain and strain of cervical spine, lumbar spine, thorax, and shoulder girdle, along with chronic post-traumatic headache, sleep disorders, other anxiety disorders, and other depressive episodes. The goals of each plan are also alike, in that they both seek a “tissue specific diagnosis” that will provide recommendations for future care.

37In submissions, the applicant argues that both assessments should be deemed reasonable and necessary to address the treatment of his chronic pain and aid in his recovery from right knee surgery to repair the tears to his meniscus. Further, the applicant claims that the respondent’s denials were improper as they did not accurately identify the applicant’s medical condition.

38The respondent describes these plans as duplicative and questions the need for both of them. It also underlines that they were submitted just five days apart. Lastly, the respondent cites Dr. Weisleder’s opinion in his IE reports that neither plan was reasonable and necessary as the applicant had reached maximal medical recovery by the time that they were submitted 18 months post-accident.

39I agree with the respondent’s contention that these plans are duplicative. They seem to differ mainly in their names, with the March 23, 2021 plan mentioning an orthopedic assessment to address chronic pain and the March 28, 2021 noting a chronic pain assessment to address chronic pain. The actual examinations and the goals of the plans are identical to the point where it is challenging to find a significant difference between the two of them. For example, the “tissue specific” descriptions in the OCF-18s could have been copied and pasted from one form to the other.

40However, I also agree with the applicant’s position that an assessment for chronic pain is warranted. As I have catalogued in my consideration of the MIG determination, the applicant has provided a significant amount of medical evidence demonstrating that he sustained meniscus tears in his right knee as a result of the accident that caused him ongoing symptoms of pain. In my view, it is reasonable and necessary to investigate this situation and deliver treatment recommendations through the chronic pain assessment provided for in the March 28, 2021 treatment plan.

41For the above reasons, the applicant is entitled to the treatment plan for a chronic pain assessment submitted March 28, 2021. He is also entitled to interest on any incurred amount of this assessment, in accordance with s. 51 of the Schedule. The applicant is not entitled to the treatment plan submitted March 23 for a medical assessment, nor interest.

The applicant is not entitled to the treatment plan for a psychological assessment submitted April 26, 2021

42I find that the applicant is not entitled to $2,200.00 for a psychological assessment in a treatment plan submitted on April 26, 2021.

43This plan, completed by Dr. Jacqueline Brunshaw, psychologist, of Prime Health Care, recommends an assessment to evaluate if psychological barriers to recovery exist and if treatment may be of benefit to the applicant. Injuries and sequelae noted in this plan include state of emotional shock, symptoms and signs of emotional state issues, unspecified behavioural syndromes associated with physiological disturbances and physical factors, and limitation of activities due to disability.

44In submissions, the applicant states that all of the treatment plans in dispute are reasonable and necessary, but his argument focuses almost entirely on a claim that the insurer’s denial was not provided in accordance with s. 38(8) of the Schedule. He claims that this treatment plan was submitted to the insurer on April 26, 2021 and denied in a fax on May 12, 2021, which is more than the 10 business days allowed by s. 38(8) of the Schedule.

45The applicant asserts that this late denial triggers s. 38(11) of the Schedule. Section 38(11) prohibits an insurer from taking the position that the insured person has an impairment to which the MIG applies because of a late denial. It also holds that an insurer shall pay for all goods, services, assessments, and examinations described in the treatment plan that relate to the period starting on the 11th business after the insurer received the application and ending on the day that the insurer cured any late denial. The applicant does not allege any deficiencies with the denial notice aside from it being sent late.

46The respondent submits that this treatment plan was actually sent to the insurer on April 28, 2021, not April 26, 2021. Therefore, the denial provided on May 12, 2021 was 10 days following the submission of the plan and in accordance with s. 38(8) of the Schedule.

47Neither party has fully substantiated their claims regarding the submission date of this treatment plan. While the applicant has submitted the OCF-18 in question, it has submitted it as part of the insurer’s denial fax sent on May 12, 2021. As the May 12, 2021 denial date is not in dispute, this does not answer questions about the submission date. However, the respondent has not provided proof of its claim that the applicant did not submit the OCF-18 until April 28, 2021. It did not include the OCF-18 as it was submitted to the insurer in its hearing submissions.

48In the end, however, the date of the submission is essentially irrelevant as the applicant has failed to direct me to any evidence that this treatment plan was incurred. Pursuant to the Divisional Court decision Aviva General Insurance Company v. Catic, 2022 ONSC 6000, to which I am bound, the applicant is not entitled to this plan as he has not provided proof that he incurred these benefits during the two days that the respondent may not have been in compliance with the denial notice provision of s. 38(8).

49In addition, the applicant has not demonstrated this plan to be reasonable and necessary. There is limited mention of psychological concerns in the CNRs of Dr. Gin and no reports from psychological experts outside of the OCF-18 in dispute indicating the need for such an assessment. Dr. A.H. Rubenstein, psychologist, failed to diagnose the applicant with any identifiable psychological impairment in an IE report dated February 23, 2022, as a result of an in-person examination conducted on January 31, 2022. Dr. Rubenstein confirmed these opinions in an addendum report completed on November 16, 2022 that followed a second in-person assessment on November 1, 2022.

50Correspondingly, the applicant is not entitled to the treatment plan for a psychological assessment.

AWARD

51I find that the respondent is not liable to pay an award to the applicant.

52Section 10 of Regulation 664 allows the Tribunal to award a lump sum of up to 50 per cent of the amount to which an insured person is entitled plus interest as applicable if it is found that the insurer behaved in a manner that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, and as a result unreasonably withheld or delayed the payment of benefits. However, it is well established that an award should not be ordered simply because an insurer made an incorrect decision regarding benefits.

53The applicant submits that the respondent has been imprudent, inflexible, and unyielding in its handling of his claims. Specifically, he notes that the insurer failed to fulfill its obligations to recognize his medical records and interventions when denying treatment plans. He also references the respondent paying $2,661.42 in medical and rehabilitation benefits, well under the MIG limit of $3,500.00, as an example of the respondent’s unreasonable conduct. The applicant does not specify an amount or percentage of this award claim.

54The respondent disputes these allegations, noting that the test for an award claim is a stringent one that requires more than just evidence of an improper denial. It argues that the applicant failed to point to any specific defects in its handling of this claim that would point to its acting in bad faith.

55I concur with the applicant. Although I have determined that the applicant should be removed from the MIG, and noted my concerns with the IE reports of Dr. Weisleder regarding the meniscus tear, this is an instance where, in my view, the respondent got it wrong. I fail to see where the respondent committed any sort of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate conduct that would rise to the level of an award being warranted.

56In accordance with the above reasoning, the respondent is not liable to pay an award.

ORDER

57I find that:

i. The applicant is removed from the MIG, as he has met his burden and demonstrated, on a balance of probabilities, that his injuries fall outside of the definition of a minor injury in the Schedule. ii. The applicant is not entitled to $1,803.73 for chiropractic services in a treatment plan submitted April 28, 2020. iii. The applicant is not entitled to $2,000.00 for a medical assessment in a treatment plan submitted March 23, 2021. iv. The applicant is not entitled to $2,200.00 for a psychological assessment in a treatment plan submitted April 26, 2021. v. The applicant is entitled to $2,000.00 for a chronic pain assessment in a treatment plan submitted March 28, 2021. vi. The respondent is not liable to pay an award.