Applicant is not statue barred from applying to LAT - Applicant and Wawanesa Mutual Insurance Company, 2018 CanLII 13182 ON LAT 16-002633

June 11, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Wawanesa Mutual Insurance Company, 2018 CanLII 13182 ON LAT 16-002633

Date of Decision: February 14, 2018
Heard Before: Adjudicator Ian Maedel

MIG and MEDICAL BENEFIT and STATUTE BARRED: applicant fails to show that pre-existing conditions worsened by accident; applicant fails to show that injuries remove her from MIG; applicant is not statute barred from application

The applicant was injured in a car accident on April 27, 2012 and suffered lower back pain, superficial injury of the shoulder and upper arm, WAD2 with neck pain and musculoskeletal signs. Wawanesa determined that she had suffered predominantly minor injury and is subject to the $3,500 MIG limit. The applicant submitted an application to the LAT following the denial of a treatment plan for physiotherapy.

Wawanesa denied this treatment plan based on the application of MIG. The applicant submits that her injuries fall outside of the MIG and she is entitled to payment for the treatment plan in question, repayment of expenses incurred and to an award. Wawanesa claims that her application is statute-barred, as the application was filed outside of the two-year limitation period or in the alternative that the treatment plan falls within the MIG.

Issues:

1. Is the applicant statute-barred from bringing this application, as it was filed outside of the two-year limitation period specified in the Schedule?
2. Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident?
3. Is the applicant entitled to receive a medical benefit in the amount of $1,226.81 for physiotherapy services submitted to Wawanesa on February 10, 2014?
4. Is the applicant entitled to repayment of expenses in the amount of $150.36 as set out in the partially approved OCF-6 dated June 6, 2014?
5. Is the applicant entitled to an award as a result of Wawanesa unreasonably withholding or delaying the payment of benefits pursuant to section 10 of R.R.O. 1990, Regulation 664?
6. Is the applicant entitled to interest on any overdue payment of benefits?

Results:

1. The applicant is not statute-barred from bringing this application. It was filed within ninety days of the Report of the Meditator, as specified in the 2012 version of the Schedule applicable at the time of the accident.
2. Based on the totality of the evidence the applicant’s injuries fall within the MIG.
3. The applicant is not entitled to the medical benefit claimed.
4. The applicant is not entitled to repayment of any monies in excess of the $3,500 cap specified at section 18 of the Schedule. Any calculation of mileage accrued must take into consideration the “authorized transportation expense” and transportation expenses only after the first fifty kilometres travelled.
5. The applicant is not entitled to an award pursuant to section 10 of R.R.O. 1990, Regulation 664.
6. The applicant is not entitled to payment of interest, as there are no overdue benefits outstanding.

FACTS

Following the accident, the applicant submitted treatment plans for massage therapy which were approved by Wawanesa. These treatment plans confirmed that the MIG applied to the applicant’s injuries.

Wawanesa provided and EOB dated February 20, 2014 and refused to provide payment for the physiotherapy treatment plan given the time elapsed since the accident and questioned if ongoing facility-based treatment was reasonable and necessary. Wawanesa required the applicant to be examined at an IE pursuant to the Schedule.

The IE concluded that the applicant had sustained soft tissue injuries. She indicated that the treatment plan was not reasonable and necessary, as the applicant did not demonstrate any ongoing objective musculoskeletal impairment and the applicant had reached maximum therapeutic benefit from formal, facility-based care. In correspondence and an EOB dated April 3, 2014, Wawanesa informed the applicant that payment for the Treatment and Assessment Plan was denied based on the IE. The applicant was advised of her ability to dispute Wawanesa’s decision and of the dispute resolution process.

The applicant submitted an Expenses Claim Form (OCF-6) dated June 6, 2014 in the amount of $164.03. Wawanesa partially approved in the amount of $13.67 which constituted the remainder of the $3,500 MIG limit pursuant to the Schedule.

The applicant was subsequently involved in another motor vehicle accident on September 5, 2015. The applicant applied to the FSCO for mediation on March 23, 2016. A Report of Mediator was issued June 17, 2016 and indicated that medical benefits remained in dispute. The report also included a notice that applications for arbitration after April 1, 2016 would no longer be accepted and the LAT had assumed all new applications for dispute resolution services. The applicant filed an application with the LAT on September 14, 2016.

The applicant submits that her injuries fall outside of the MIG, given her pre-existing lower back and left shoulder pain which left her vulnerable to exacerbation or re-injury, her diagnosis of chronic pain and psychological issues. She claims an award as Wawanesa acted in bad faith by failing to adjust the file in a timely manner and remove her from the MIG. The applicant states she is not statute barred by the limitation period, as the application to the LAT was filed within ninety days of the Report of Mediator, as per the Schedule at the time of the accident.

Wawanesa submits that the applicant has suffered primarily a minor injury as defined in the Schedule and is bound by the $3,500 limit for treatment. The applicant has failed to provide any diagnostic records or credible medical opinions to support that anything other than soft-tissue injuries were sustained in the accident. Wawanesa submits that the matter is statute-barred, as the application to the LAT was filed more than two years after the denial of the treatment plans at issue. In the alternative, they submit that the applicant has exhausted the $3,500 limit and the treatment proposed is not reasonable and necessary.

The Adjudicator reviewed the limitation period and noted that a proceeding shall be commenced within two years after Wawanesa’s refusal to pay the benefit claimed. Under section 281.1(2)(b), if there is a mediation, the limitation period is extended for a period of ninety days following the report of the mediator. The Schedule states that a court proceeding or arbitration under section 281(1)(a) or (b) of the Insurance Act regarding a benefit shall be commenced within two years after Wawanesa’s refusal to pay the amount claimed. Section 56 also allows a ninety-day extension of the limitation period following the Report of Mediator.

The two-year limitation period begins when Wawanesa notifies the applicant of its stoppage or refusal to pay a benefit. The refusal must be in writing, clear, and unequivocal. The notice of a refusal to pay benefits must also contain, in straightforward and clear language a description of the dispute resolution process, such as the right to seek mediation, arbitration or litigate, and the relevant time limits governing the entire process. The Supreme Court of Canada provided guidance on the minimum scope of a written refusal in Smith v. Cooperators General Insurance Company.

The two-year limitation periods for the treatment plans at issue expired April 3, 2016 and June 23, 2016. However, given that a Report of Mediator was issued by FSCO on June 17, 2016, this extended the limitation period by a further ninety days as per section 56 of the Schedule effective in 2012. The application was filed with the LAT on September 14, 2016, just a few days prior to the expiration of the extended limitation period. The applicant filed her application to FSCO prior to the expiration of the two-year limitation period and was still in the midst of the mediation process when the LAT assumed responsibility for the dispute resolution process on April 1, 2016.

In this matter, the ninety-day extension is operative and the applicant’s rights to proceed with dispute resolution were preserved. The applicant is not statute-barred by the limitation period specified in section 56 of the Schedule.

Minor Injury Guideline

The applicant asserts that she should be removed from the MIG on the basis of a pre-existing injury to her lower back and left shoulder. The applicant has provided clinical notes and records which indicate she was experiencing clicking sounds in her left shoulder in 2009. She underwent an ultrasound which was normal. She was also involved in a slip and fall in a grocery store in 2011, reportedly sustaining lower back pain. In the IE it is noted that there are “degenerative changes in the cervical spine, shoulders and right elbow”, but when examined in January 2017, the applicant states that she has had a full resolution of her lower back and shoulder pain prior to the subject accident. The applicant did not address this potential conflict in the evidence. Neither her treating physiatrist, nor the expert physiatrist relied upon by the applicant, provided any diagnosis with regard to pre-existing conditions. As a result, the Adjudicator was left with doubt as to the nature of her pre-existing condition prior to the subject accident.

Chronic Pain and Psychological Issues

The applicant relies on two reports provided by physiatrist to remove the applicant from the MIG on the basis of chronic pain syndrome. None of the other five doctors who examined the applicant provided any similar diagnosis of chronic pain.

The Adjudicator was not persuaded by the applicant’s submission and noted here are no diagnostic records or credible medical opinions to support that anything aside from soft-tissue strains and sprains were sustained as a result of the subject motor vehicle accident. The applicant has failed to present any evidence that the chronic pain alleged is anything but sequelae of these soft-tissue injuries.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.