Is an Insurer Examination Comprehensive when Missing Medical Reports?

Written By: Joseph Cescon, Partner, and Cassandra De Marco, Student-At-Law

Huber v. Allstate Insurance Company of Canada, 2024 ONLAT 22-003147/AABS

2024-09-17

Introduction

The Applicant was injured in a motor vehicle accident but was denied benefits by the Respondent. The Respondent insurer examination deemed the Applicant within the Minor Injury Guidelines (MIG), thus not being eligible for benefits exceeding the amount of $3,500. However, the Applicant appealed to License Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) where the following five issues were deliberated:

Do the Applicant’s injuries fall within the MIG?
Is the Applicant entitled to $3,841.09 for psychological services?
Is the Applicant entitled to $2,486.00 for a psychological assessment?
Will the Respondent be required to pay an award to the Applicant under s. 10 of O. Reg.664?
Is the Applicant

1. The Minor Injury Guideline (MIG)

The Applicant submits they are beyond the scope of the MIG and should be permitted coverage beyond the $3,500 cap. However, upon the completion of two insurer examinations, the Respondent concluded the Applicant’s injuries are within the MIG and therefore not eligible beyond the maximum coverage.

1.1. What is the MIG?

The Minor Injury Guideline is a part of the Statutory Accident Benefits and is used to determine a victim’s eligibility for insurance benefits. The primary objectives of the MIG are to:
1. Provide speedy access to rehabilitation for persons who sustain minor injuries in auto accidents;
2. Improve the utilization of health care resources;
3. Provide certainty around cost and payment for insurers and regulated health professionals; and
4. Be more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries.[1]

The MIG provides a treatment course of 12-weeks, with an insurance limit of $3,500.[2] To be within the MIG, the injuries must be classified 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.”[3]
To be eligible for coverage beyond the $3,500 and be classified outside of the MIG, the injury must be beyond the scope of the definition of minor injury, and there must be proof that a pre-existing medical condition is preventing recovery, or proof of chronic pain or a psychological impairment.[4] It is the responsibility of the applicant to prove they are entitled to coverage beyond the $3,500 cap.

1.2. The MIG as it applies to Huber v. Allstate Insurance Company of Canada

The Applicant underwent two insurer examinations in 2021, where it was concluded her injuries were within the definition of a minor injury. The Respondent submits the Applicant refused to provide medical evidence of her complaints.
However, the Applicant stated the examinations were completed without the use of the clinical notes and records of two of the Applicant’s doctors. The Applicant had provided these clinical notes and records to the Respondent by email in April 2021, to which the Respondent failed to send the medical reports to the insurer examiners. The Applicant also provided proof of a signed OCF-5 form which allowed the Respondent to obtain ongoing medical information to assist in the insurer examination.
The medical reports that were not provided to the insurer examiners contained evidence that the Applicant was experiencing:
Continuous and chronic pain;
A flare up of osteoarthritis, with an accompanying referral to a rheumatologist; and
Psychological impairments that are, “significant enough to conclude that she does not fall under the Minor Injury Guideline.”[5]
The Tribunal determined that the insurer examinations were not comprehensive when both were prepared lacking medical information provided by the Applicant. When considering the above, the Tribunal concluded the Applicant requires treatment beyond the scope of the MIG.

2. Psychological Services and Assessment

The Respondent relied on the insurer examination and denied the Applicant access to psychological services and a psychological assessment.
The Respondent submits the psychological services were denied because the assessment recommending psychological services was a year after the initial complaint. Further, the Respondent relies on the assessment by the insurer examiner which provides there is a lack of evidence of accident-related conditions to require treatment.
The Respondent further submits that the psychological assessment was denied because the Applicant failed to submit medical records in accordance with the CCRO. However, the Applicant submits medical records were provided via email, but the Respondent failed to provide them to the insurer examiners.
Upon review, the Tribunal determined the medical records and treatment plan were provided to the Respondent, but the Respondent failed to admit them to the insurer examiners.
The Tribunal concluded that both the psychological services and the psychological assessment are reasonable and necessary, thus approving the Applicant’s claim.

3. Awards and Interest

The Tribunal concluded that there was no egregious conduct, and thus the Applicant is not eligible for an award pursuant to s. 10 of O. Reg 664.[6]
The Tribunal further determined that the treatment plans proposed by the Applicant were reasonable and necessary, and as such the Applicant is entitled to interest.

4. Conclusion

Upon reviewing the submission of the Applicant and Respondent, the Tribunal, made the following conclusions:

The Applicant’s impairments exceed that of the Minor Injury Guideline (MIG).
The Applicant is entitled to $3,841.09 for psychological services.
The Applicant is entitled to $2,486.00 for a psychological assessment.
The Applicant is not entitled to an award under Regulation 664.
The Applicant is entitled to interest pursuant to s. 51 of the Schedule.

To have a comprehensive and reliable insurer examination, the insurance company must provide all medical reports to the examiner. In this case, the Applicant had provided all medical reports prior to the examination and provided permission to access any ongoing medical information through signing an OCF-5 form. Therefore, the insurance company was unable to rely on the insurer examination since they failed to provide the medical reports from the Applicant, resulting in an inaccurate examination.
Where there is a denial of a benefit and the Insurer/Respondent is relying on an insurance examination, Plaintiff/Applicant’s counsel are well advised to review all materials that have been provided to the assessor in order to determine if the assessment findings are likely to past muster with the LAT.

[1] Minor Injury Guideline, Financial Services Commission of Ontario

[2] Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 18(1)

[3] Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 1.

[4] Huber v. Allstate Insurance Company of Canada, 2024 CanLII 41012 (ON LAT) at 8.

[5] Supra note 4 at 11.

[6] [K.M.] v. Aviva Insurance Canada, 2023 CanLii 60250 (ON LAT) at 54.