June 07, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
TF and Peel Insurance Company, 2018 CanLII 39373 (ON LAT 16-003316)
Date of Decision: April 5, 2018
Heard Before: Linda P. Lamoureux, Executive Chair
REQUEST FOR RECONSIDERATION
BENEFITS and MEDICAL TREATMENT APPROVED: insurer fails to provide medical reasons behind request for IE; Insurer fails to follow post 2010 protocols for denial of benefits; when issuing denial letter the medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue;
This request for reconsideration concerns the reasons that Peel gave TF for denying two Treatment and Assessment Plans and, at the same, scheduling two insurer examinations. More specifically, it assesses whether those reasons satisfied the notice requirements outlined in the SABs. The LAT held that they did. On that basis, and given TF’s non-attendance at the examinations, the Tribunal dismissed her application under s. 55 of the Schedule. However, as explained below, that decision was based on a significant error. The Executive Chair therefore granted TF’s request and order Peel to pay for the benefits at issue.
On June 24, 2013 TF was injured in a car accident when her vehicle was hit from behind as she attempted to turn into a gas station. She submitted an OCF-1 to Peel along with a disability Certificate completed a Physiotherapist. Both documents indicated that, as a result of the accident, TF’s injuries prevented her from returning to work. Peel then began paying her an income replacement benefit, the details of which are irrelevant.
The record repeatedly indicates that TF tried unsuccessfully to return to her job as a general labourer on a meatpacking line. It also makes clear that her injuries impaired her daily activities at home and on her farm, as well as caused her to struggle with depression. TF’s accident-related difficulties were addressed in a number of documents discussed further below.
The treatment plans at issue
The parties’ dispute concerns two OCF-18s.
Ms. LF, OT, completed the first OCF-18, following an Update report she authored on February 28, 2016. Ms. LF outlined TF’s continuing difficulties due to her accident-related injuries. Ultimately, she recommended that TF receive in-home occupational therapy to help her resume her activities of daily living and successfully return to work, along with certain additional assistive devices. Thus, Ms. LF completed an OCF-18 dated March 2, 2016, recommending that Peel fund TF’s occupational therapy and assistive devices at a cost of $4,216.46. Notably the report also recommended that TF be referred for additional physiotherapy to address her chronic injuries and reconditioning. She noted that this was consistent with a referral that the Physician wrote on February 6, 2016, in which he indicated that TF should receive physiotherapy to “assess and treat for R tennis elbow, chronic back pain (from MVA) and deconditioning.” Ms. LF explained that, for these reasons, TF was “referred to Saugeen Physiotherapy”. Hence, the second OCF-18, completed on March 8, recommending that TF receive physiotherapy services totalling $2,383.65.
By separate letters dated March 21, 2016, Peel denied each OCF-18 and requested an IE. In denying the first OCF-18 for occupational therapy treatment and assistive devices, Peel explained as follows:
“The reason for this is that the medical documentation does not support the need for OT sessions as described in the OT report of February 28, 2016. The OT also appears not to be pursuing the plan that had been laid out by Mr. Bachman, Vocational Rehabilitation Specialist. Given the lack of evidence, an Insurer’s Examination is required to address the [sic] eligibility for medical/rehabilitation benefits.”
Peel included a Notice of Examination indicating that it had scheduled TF for an in-home IE with an Occupational Therapist. This notice did not include any further explanation of why the IE was being scheduled. Peel’s second denial was similarly brief. In denying the OCF-18 for physiotherapy, Peel offered the following:
“The reason for this is that the clinical notes and records do not support the need for physiotherapy treatment. The diagnosis of epicondylitis does not appear to be MVA Related. You also failed to complete the work hardening program as recommended by the IE Assessor. Given the lack of evidence an Insurer’s Examination is required to address eligibility for medical/rehabilitation benefits.”
Peel included a further Notice of Examination indicating that it had scheduled TF for an IE with a Physiotherapist. Like its first notice, this second notice did not include any further explanation justifying the IE’s need.
Confused, TF asked Peel to clarify the documentation upon which it was relying, and outlined in considerable detail how the information in its possession supported her requests for funding. She also took the position that Peel’s denials and notices of examination failed to comply with the Schedule’s notice requirements and, thus, that she was not obligated to attend the IEs. TF asked Peel to reconsider. It did not. All told, Peel refused to provide any further explanation and confirmed laconically that its position remained the same. Neither of the IEs occurred. Instead, in August 2016, TF applied to the Tribunal to dispute her entitlement to the benefits in both OCFs.
The Tribunal’s decision
Following the parties’ case conference, TF made a preliminary motion. In short, she asked the Tribunal to determine whether Peel’s March 21, 2016 denials and requests for IEs complied with s. 38(8) and 44(5) of the Schedule, respectively. The Tribunal held that they did. Further, given TF’s non-attendance at the IEs, the Tribunal dismissed her application under s. 55 of the Schedule.
TF now asks that the Executive Chair reconsider the Tribunal’s decision. TF argues that the Tribunal erred in applying the Schedule, and that Peel did not provide her with the requisite “medical reasons” explaining why the benefits at issue are not reasonable and necessary. The Executive Chair Agreed.
The Chair reviewed the notice requirement under s. 38(8) of the Schedule which regulates the manner in which insurers must respond after receiving an OCF-18:
Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
This section embodies a significant development. Post September 1, 2010 IEs are no longer mandatory upon denial and, subject to important limits, are now at an insurer’s discretion. In turn, insurers must outline their medical and other reasons for denying a plan, an obligation that was also added in s. 44(5)(a) to qualify their ability to request an IE.
When it was first introduced, s. 38(8) required insurers to provide the “medical and any other reasons” justifying a denial [emphasis added]. In 2013, however, the government went further. It amended the section to obligate insurers to justify any plan’s denial with “the medical reasons and all of the other reasons”. This was a small but telling change. The government obviously intended insurers to explain any denial of benefits with all applicable reasons. In doing so, it clearly sought to prevent insurers from denying treatment arbitrarily, ensure transparency in their decision-making and, most importantly, advance the Schedule’s ultimate aim: to ensure that injured persons have access to accident benefits as soon as possible – when they need them. As the Supreme Court of Canada has recognized, no fault insurance like the Schedule is “predicated upon the desire to provide accident benefits to all victims, regardless of fault, efficiently and expeditiously.”
In the Chair’s opinion an insurer satisfies its obligation to provide its “medical and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
The ultimate purpose underlying s. 38(8) is to require an insurer to respond to a treatment plan not only quickly but also reasonably, in a manner that respects an insured’s ability, when entitled, to access timely treatment. To that end, an insurer’s “medical reasons” for denying a plan should engage the specific details about the insured’s condition forming the basis for the insurer’s decision. They should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. Those entitled to accident benefits should not have to wonder why they are denied treatment. Nor should they have to incur the temporal, emotional, and financial costs associated with engaging the Tribunal in order to obtain the treatment they should have received long before. If s. 38(8) is to achieve its purpose, it must require insurers to accompany any denial of benefits with meaningful and accurate reasons based on an insured’s medical condition as described in the file at hand.
In evaluating the sufficiency of such notice, the Tribunal should be mindful of those who adjust insurance files. It would be naïve or impractical or to expect them to articulate something resembling a medical opinion. Likewise, their reasons should not be measured by the inch or held to a standard of perfection. Moreover, reasonable minds may disagree about the content of an insured’s file. Those allowances should be made. If it offers a principled rationale based fairly on an insured’s file, an insurer will have satisfied its obligation under s. 38(8).
Why the Tribunal erred - Peel fell short of that mark.
In reviewing Peel’s denial of the first OCF-18 for occupational therapy treatment and assistive devices, the Tribunal held, at paras. 22-25 as follows:
Peel indicated the following in the denial letter:
“The reason for this [denial] is that the medical documentation does not support the need for OT sessions as described in the OT report of February 28, 2016. The OT also appears not be pursuing the plan that had been laid out by Mr. Bachman, Vocational Rehabilitation Specialist. Given the lack of evidence, an Insurer’s Examination is required to address the eligibility for medical/rehabilitation benefits.”
This letter indicates that the adjuster reviewed the medical documentation and came to a conclusion that the evidence does not support entitlement to occupational therapy services.
TF submits that Peel refused to identify what medical documentation it relied on to deny the benefit.
I am of the view that an exhaustive list of the medical documentation that Peel reviewed is not required to be listed in the denial letter. However, Peel should be prepared to clarify such information if requested by TF. For those reasons, the Tribunal held that Peel satisfied its notice obligation under s. 33(8).
The Chair disagrees. The real substance of Peel’s decision was its opaque reference to the available “medical documentation.” Problematically, this reference offers no insight into Peel’s reasons for denying TF treatment. Indeed, the general assertion that the available medication documentation does not support TF’s need for occupational therapy offers no medical reason whatsoever. It is simply an unsupported conclusion. Instead, Peel should have drawn TF’s attention to the specific documentation, along with the relevant points therein, upon which it was relying. The Chair agrees with the Tribunal’s observation that an “exhaustive list” is not necessarily required. However, Peel failed to provide any detail about TF’s condition as described in the available documentation. That was fatal.
More problematically, the record suggests that the available documentation overwhelmingly supported TF’s need for the requested benefits.
As such, Peel’s suggestion that the available medical documentation did not “support the need for OT sessions” was not a position that it was fairly or reasonably entitled to take, even if one were to allow for differences of opinion. Insurers are not entitled to rely on reasons that are incongruous or contrived in order to satisfy their notice obligations. Such an approach would not only be inconsistent with an insurer’s obligation to deal with those they insure in good faith but would frustrate the Schedule’s purpose of ensuring that an insured person receives accurate and valid reasons for being denied treatment.
In effect, the Tribunal held that Peel satisfied its obligation under s. 38(8) by simply indicating that it had reviewed the available documentation and “came to a conclusion that the evidence does not support entitlement.” Such an approach undermines, if not nullifies, the important purposes underlying s. 38(8). Thus, the Tribunal has committed a significant error of law in interpreting the Schedule and applying it to the facts of this case.
The same applies to Peel’s second denial.