April 19, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
M.K. and Dumfries Mutual
Income and medical benefits: MIG; burden of proof on applicant to prove entitlement to income and medical benefits; burden of proof not met; insurer did not err in decision
Date of Decision: March 10, 2017
Heard Before: Adjudicator Jeanie Theoharis
M.K. was hurt in a car accident on March 4, 2014, when her vehicle was hit on the front driver’s side corner. She went into a snowbank. She was picked up by her brother from the scene and taken home. She applied for dispute resolution services to the LAT and sought benefits pursuant to the SABs. The parties were unable to resolve their dispute at case conferences held on August 2, 2016, and August 19, 2016, and the matter proceeded to a written hearing.
M.K. went to see Dr. N, her family doctor on March 6, 2014, complaining of back, neck, arm, left leg pain and headaches. He diagnosed her with multiple myofascial sprains, referred her for physiotherapy, and sent her for x-rays of her cervical and lumbar spine. On March 7, 2014, M.K. attended at the Centennial Rehab Centre for an assessment. Treatment was recommended, and Dumfries approved treatment within the MIG. At the time M.K. was working full time as dishwasher / prep cook at a retirement home in, Ontario at the time of the accident.
M.K. applied for and received an income replacement benefit for the period from March 11, 2014, to May 26, 2014. The total amount paid for IRBs is $4,685.68. The benefit ended as of May 27, 2014
M.K. submits that:
- Dumfries made procedural errors in denying M.K.’s IRBs;
- She is eligible to receive IRBs;
- Her injuries are not minor as defined in the Schedule and fall outside of the Minor Injury Guideline (the “MIG”); and,
- The claimed treatments and examinations are reasonable and necessary.
- They made no procedural errors when denying M.K. IRBs;
- M.K. is not eligible to receive IRBs;
- M.K.’s injuries are minor, and her entitlement to benefits is defined by the MIG; and,
- The claimed treatments and examinations are not reasonable and necessary.
Issues in Dispute
- Is M.K. entitled to receive IRBs May 27, 2014, to March 11, 2016?
- Is M.K. entitled to receive medical benefits recommended by Centennial Rehabilitation Centre for physiotherapy services?
- Is M.K. entitled to receive payment for the costs of the various assessments recommended by Pearson Medical Assessment Centre?
- Is M.K. entitled to interest on any overdue payment of benefits?
- Is either party entitled to costs?
- Is M.K. entitled to an award under s. 10 of O. Reg. 664 because Dumfries unreasonably withheld or delayed payments to M.K.?
The Arbitrator reviewed the evidence and found that:
- M.K. is not entitled to IRBs.
- M.K. is not entitled to the cost of the above-described treatment plans.
- M.K. is not entitled to the costs of the above-described assessments.
- M.K is not entitled to interest on any overdue payment of benefits.
- Neither party is entitled to costs.
- M.K. is not entitled to an award under s. 10 of O. Reg. 664.
Shortly after the motor vehicle accident, M.K. applied for IRBs from Dumfries. Dumfries advised M.K. that she was entitled to IRBs in the amount of $400.00 per week and paid M.K. a total amount of $4,685.68 in IRBs for the period from March 11, 2014, to May 26, 2014. Dumfries wrote to M.K. requesting she submit to an examination under s. 44 of the Schedule to determine her continued entitlement to IRBs. The assessment was scheduled for May 12, 2014, at 10:00 a.m. for one hour.
On May 12, 2014, a chiropractor examined M.K, and provided a report to Dumfries on May 26, 2014. The same day, Dumfries informed M.K. that based on the report she was no longer eligible to receive IRBs.
M.K. alleges Dumfries:
- failed to comply with s. 37(6)(d) of the Schedule by not providing M.K. with sufficient notice that her IRBs would end on May 26, 2014;
- failed to comply with s. 37(5) of the Schedule by not providing a copy of the s. 44 report to the doctor who completed the disability certificate (OCF-3); and
- misdirected M.K. to apply to the Financial Services Commission of Ontario (“FSCO”) by an invalid notice dated May 26, 2014 that did not inform M.K. she could appeal Dumfries’s denial to this Tribunal.
The Arbitrator reviewed the evidence and the law and determined that Dumfries did not make a mistake.
- The Schedule not require a specified period of notice to an insured when terminating a benefit.
- The Schedule does not require Dumfries to give any more notice to M.K. of the stoppage of her income replacement benefit than they did, only to inform her of their decision within 10 days of receiving the s. 44 report.
- The Schedule requires an insurer to deliver a copy of the s. 44 examination report to the insured person, which Dumfries did on May 26, 2014.
- Dumfries made no error in directing M.K. to FSCO. At the time of the May 2014 letter all accident benefits disputes in Ontario were required to begin with mediation at FSCO, and the LAT did not exist. By the time M.K. decided to dispute Dumfries’s denial, responsibility for adjudicating accident benefits disputes had transferred to the LAT, which is where M.K. filed her appeal.
Having found no procedural errors by Dumfries the Arbitrator considered whether M.K. is eligible to receive IRBs, and determined that based on the evidence M.K. does not meet the eligibility test for IRBs.
Eligibility for IRBs is found in s. 5(1) of the Schedule. The income replacement benefit is payable during the time the insured person suffers a substantial inability to perform the essential tasks of her employment and the benefit is not available for the first week of disability.
The Arbitrator reviewed where M.K. Worked and the conditions and essential tasks employment. The Arbitrator determined that M.K. has not established that she is substantially unable to perform the essential tasks of her employment.
The Arbitrator also reviewed surveillance evidence and determined that M.K.’s testimony was not a reliable.
The Arbitrator reviewed the totality of the evidence and found that M.K. has not established that her injuries take her outside of the MIG. As M.K.’s injuries are within the MIG, there is no need to consider whether the treatment plans and costs of assessment are reasonable and necessary.
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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 toll-free at 1-866-414-4878.
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.