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Are Medical Expenses Incurred By An Accident Victim Covered By Automobile Insurance?

The Mandatory Coverage Within An Automobile Insurance Policy Includes the Statutory Accident Benefits Schedule Which Includes Limited Protection For Medical Expenses and Rehabilitation Costs.

Understanding the Medical, Rehabilitation, and Attendant Care, Expense Coverage Within Automobile Insurance

Insurance Claim Document A person who suffers an injury as a result of an automobile accident may incur medical expenses that are outside the coverage provided by OHIP, such as physiotherapy services, chiropractic services, massage services, home care, prescription medications, assistive devices, and much more.  In such circumstances, where both OHIP and private insurance is unavailable, compensation may be provided by an applicable automobile insurance policy.

The Law

The Statutory Accident Benefit Schedule, O. Reg. 34/10, as a Regulation to the Insurance Act, R.S.O. 1990, c. I.8, prescribes coverage to protect injury victims from medical, rehabilitation, and attendant care, expenses as follows:


Insurer liable to pay benefits

14. Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:

1. Medical and rehabilitation benefits under sections 15 to 17.

2. If the impairment is not a minor injury, attendant care benefits under section 19.

Medical benefits

15. (1) Subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(c) medication;

(d) prescription eyewear;

(e) dentures and other dental devices;

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant; and

(h) other goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person, and for which a benefit is not otherwise provided in this Regulation.

(2) Despite subsection (1), the insurer is not liable to pay medical benefits,

(a) for goods or services that are experimental in nature;

(b) for expenses related to goods and services described in subsection (1) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines, other than for expenses related to the services described in clause (1) (g); or

(c) for transportation expenses other than authorized transportation expenses.

Rehabilitation benefits

16. (1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

(2) Measures to reintegrate an insured person into the labour market are considered reasonable and necessary, taking into consideration the person’s personal and vocational characteristics, if they enable the person to,

(a) engage in employment or self-employment that is as similar as possible to the employment or self-employment in which he or she was engaged at the time of the accident; or

(b) lead as normal a work life as possible.

(3) The activities and measures referred to in subsection (1) are,

(a) life skills training;

(b) family counselling;

(c) social rehabilitation counselling;

(d) financial counselling;

(e) employment counselling;

(f) vocational assessments;

(g) vocational or academic training;

(h) workplace modifications and workplace devices, including communications aids, to accommodate the needs of the insured person;

(i) home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home;

(j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle;

(k) transportation for the insured person to and from counselling and training sessions, including transportation for an aide or attendant; and

(l) other goods and services that the insurer agrees are essential for the rehabilitation of the insured person, and for which a benefit is not otherwise provided in this Regulation, except,

(i) services provided by a case manager; and

(ii) housekeeping and caregiver services.

(4) Despite subsection (1), the insurer is not liable to pay rehabilitation benefits,

(a) for expenses related to goods and services described in subsection (3) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines, other than for expenses related to the services described in clause (3) (k);

(b) for expenses incurred to renovate the insured person’s home if the renovations are only for the purpose of giving the insured person access to areas of the home that are not needed for ordinary living;

(c) for the purchase of a new home in excess of the value of the renovations to the insured person’s existing home that would be required to accommodate the needs of the insured person;

(d) for expenses incurred to purchase or modify a vehicle to accommodate the needs of the insured person that are incurred within five years after the last expenses incurred for that purpose in respect of the same accident;

(e) for the purchase of a new vehicle in excess of the amount by which the cost of the new vehicle exceeds the trade-in value of the existing vehicle;

(f) for transportation expenses other than authorized transportation expenses.

Case manager services

17. (1) Subject to subsection (2), medical or rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by a qualified case manager in accordance with a treatment and assessment plan under section 38,

(a) if the insured person sustains a catastrophic impairment as a result of the accident; or

(b) if the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28 (1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28 (1) is available to the insured person.

(2) The insurer is not liable to pay expenses for case manager services that exceed the maximum rate or amount of expenses established under the Guidelines.

(3) In this section,

qualified case manager” means a person who provides services related to the co-ordination of goods or services for which payment is provided by a medical, rehabilitation or attendant care benefit.

Monetary limits re medical and rehabilitation benefits

18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.

(2) Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.

(3) The sum of the medical, rehabilitation and attendant care benefits paid in respect of an insured person who is not subject to the financial limit in subsection (1) shall not exceed, for any one accident,

(a) $65,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019; or

(b) if the insured person sustained a catastrophic impairment as a result of the accident, $1,000,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019.

(4) The maximum amounts set out in subsection (3) apply unless modified by any optional benefits that are available under paragraph 3, 4 or 5 of subsection 28 (1).

(5) For the purposes of subsections (1) and (3), medical, rehabilitation and, where applicable, attendant care benefits payable in respect of an insured person include all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefit or payment to or for an insured person under this Regulation, other than,

(a) fees in connection with any examination required by an insurer under section 44; and

(b) expenses in respect of a report referred to in subsection 7 (4).

Attendant care benefit

19. (1) Attendant care benefits shall pay for all reasonable and necessary expenses,

(a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Fixing Long-Term Care Act, 2021 or a chronic care hospital; and

(b) that, to the extent any of the expenses referred to in clause (a) are for transportation, are authorized transportation expenses for which no medical benefit described in clause 15 (1) (g) is payable, no rehabilitation benefit described in clause 16 (3) (k) is payable and no amount is payable under subsection 25 (4).

(2) Subject to subsection (3), the amount of a monthly attendant care benefit is determined in accordance with the version of the document entitled “Assessment of Attendant Care Needs” that is required to be submitted under section 42 and is calculated by,

(a) multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care; and

(b) adding the amounts determined under clause (a), if more than one type of attendant care is required.

(3) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

1. If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28 (1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28 (1) has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

i. $3,000 per month plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

ii. $6,000 per month plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019, if the insured person sustained a catastrophic impairment as a result of the accident.

2. If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 3 of subsection 28 (1) has been purchased and applies to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed the amount set out in subparagraph 1 i.

3. If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28 (1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28 (1) has been purchased and applies to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed the monthly limit under subsection 28 (7).

4. Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a result of, providing the attendant care.

5. Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did so for remuneration, and the actual expenses incurred in respect of the attendant care services are lower than the amount of the monthly attendant care benefit as determined under subsection (2), the insurer shall only be liable for payment of the incurred expenses.

Duration of medical, rehabilitation and attendant care benefits

20. (1) Subject to subsection (2), no medical, rehabilitation and attendant care benefit is payable for expenses incurred,

(a) more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident; or

(b) after the insured person’s 28th birthday, in the case of an insured person who was under 18 years of age at the time of the accident.

(2) The time limits set out in subsection (1) do not apply in respect of an insured person,

(a) who sustains a catastrophic impairment as a result of the accident; or

(b) who is entitled to optional medical, rehabilitation and attendant care benefits under paragraph 4 of subsection 28 (1) or catastrophic impairments benefits under paragraph 5 of subsection 28 (1).

As shown above, the coverage for medical, rehabilitation, and attendant care, can be complicated and confusing with each applicable coverage having varied eligibility criteria, sublimits, conditions, coverage duration, among other terms.  Interestingly, the attendant care coverage is available only to those victims whose injuries are deemed serious or catastrophic.

For minor injuries such as bruises, strains, and sprains, coverage limits of three thousand five hundred 00/00 ($3,500) dollars, plus taxes, applies.  For injuries that are more serious, the coverage limit increases to sixty-five thousand 00/00 ($65,000) dollars, plus taxes, and for injuries deemed catastrophic such as an occurrence of brain damage, amputation, or spinal cord trauma, the coverage increases to one million 00/00 ($1,000,000) dollars, plus taxes.

As coverage limits differ so significantly depending on how serious the injuries are categorized, legal disputes often occur over the categorization such as that which occurred within the case of Lin v. Certas Direct Insurance Company, 2022 CanLII 70253, wherein argument arose over whether injuries should be deemed minor or deemed serious and in the tribunal decision it was said:


ISSUES IN DISPUTE

[4]   The following issues are to be decided:

(i)   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 and in the MIG?

(ii)  Is the applicant entitled to a medical benefit in the amount of $4,416.71 for chiropractic treatment, proposed by Total Rehabilitation Rehab Centre in a treatment plan (“OCF-18”) dated April 3, 2020?

(iii) Is the applicant entitled to a cost of examination in the amount of $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in an OCF-18 dated September 5, 2019?

(iv) Is the applicant entitled to a medical benefit in the amount of $200.00 ($1,300.00 less $1,100.00 approved) for chiropractic treatment, proposed by EZ Physio in an OCF-18 dated August 2, 2019?

(v)  Is the applicant entitled to a medical benefit in the amount of $3,783.74 for physiotherapy services, proposed by EZ Physio in an OCF-18 dated October 25, 2019?

(vi)  Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

[5]   I find that:

(i)   The applicant’s accident-related injuries are outside of the MIG as she suffers a psychological impairment;

(ii)  The applicant is entitled to $2,200.00 for a psychological assessment, plus interest in accordance with s.51 of the Schedule;

(iii) The applicant is entitled to the outstanding balance of $200.00 for chiropractic treatment, proposed in the OCF-18 dated August 2, 2019, plus interest in accordance with s.51 of the Schedule;

(iv) The applicant is not entitled to $4,416.71 for chiropractic treatment, proposed in the OCF-18 dated April 3, 2020; and

(v)  The applicant is not entitled to $3,783.74 for physiotherapy services, proposed in the OCF-18 dated October 25, 2019.

LAW

[6]   The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

[7]   Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence demonstrating that their injuries are not included in the minor injury definition.

[8]   The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.[3]

[9]   Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

[10]  Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

ANALYSIS – APPLICABILITY OF THE MINORY INJURY GUIDELINE

Does the Applicant have Chronic Pain that would warrant removal from the MIG?

[11]  I find that the applicant has not met her onus to establish that she suffers from chronic pain as a result of the accident that would warrant removal from the MIG.

[12]  The applicant submits that she sustained serious physical injuries from her motor vehicle accident and as a result, suffers from chronic pain. To establish her chronic pain, the applicant relies on the section 25 psychological assessment report of Dr. Sharleen McDowell, psychologist, dated March 5, 2021; an Activities of Normal Living form (‘OCF-12’) dated May 21, 2021; clinical notes and records (“CNRs”) of her family physician Dr. Kaiyan Su; OCF-18’s prepared by Dr. Rick Tavares, chiropractor at EZ Physio; treatment records from EZ Physio; and an OCF-18 prepared by Dr. Georgia Palantzas, chiropractor at Total Recovery Rehab Centre.  Dr. Palantzas noted positive findings with respect to tests of disc integrity and nerve root tension, suggesting significant radiculopathy and stated that the applicant’s injuries were chronic in nature as her pain had persisted for over 3-6 months[4].

[13]  In contrast the respondent submits that the applicant has not received a diagnosis of chronic pain nor any non-minor injuries related to the accident that would warrant her removal from the MIG. Further, the respondent notes that the applicant has not provided any medical evidence to demonstrate that she meets criteria stipulated in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, as considered in M.A. vs. Aviva Insurance Canada[5] to establish chronic pain. Finally, the respondent asserts that the applicant did not seek treatment from her family doctor for a period of more than two years – from July 2019 to July 2021, and that this pattern of treatment would not be indicative of a non-minor injury.

[14]  I find that the applicant has not met her burden on the ground of chronic pain. Firstly, the psychological assessment submitted by the applicant does not establish chronic pain. In the assessment Dr. McDowell references the applicant’s self-reports of pain in her neck, right arm, legs, right knee as well as dizziness. However, a physical diagnosis would be outside of Dr. McDowell’s area of expertise, as a psychologist. Thus, I place little weight on this finding.  Further, although the applicant claims in her submissions that Dr. McDowell diagnosed her with “Somatic Symptoms Disorder[6], there is no reference to such a diagnosis in Dr. McDowell’s report. Rather, the sole diagnoses were of Major Depressive Disorder with Anxious Distress and Specific Phobia (travel)[7].

[15]  The applicant’s further assertion that the various OCF Forms submitted establish her ongoing chronic pain is similarly not persuasive. The OCF-18’s submitted by the applicant from March 2019 to April 2020 do reference various pain complaints and indicate some treatment. However, from April 2020 on, there is no evidence that the applicant sought any kind of treatment for pain-related injuries. In addition, there were no additional pain complaints until almost a year later, in March and May 2021, when the applicant self-reported pain to Dr. McDowell during her psychological assessment and in her OCF-12.

[16]  This is corroborated by the CNRs from the applicant’s family physician, Dr. Su, which do not describe ongoing complaints of chronic pain. The applicant did not seek medical attention immediately after her car accident but attended at Dr. Su’s office one-month post-accident.

[17]  During this visit, the applicant did not reference her motor vehicle accident or report any injury or pain complaint. In a visit five months post-accident, the applicant described intermittent neck and left thigh pain, but claimed that it was “moderate[8]. There is no record of the applicant attending at Dr. Su’s office for accident-related complaints until two years later, in July 2021; these complaints were solely psychological and did not reference any physical injury or pain[9]. One pain-related visit to a family physician over a two-year period is insufficient to establish the type of debilitating chronic pain affecting functionality, that might otherwise remove the applicant from the MIG.

[18]  Finally, the applicant asserts that her chronic pain limits her daily functioning and ability to perform her work duties. To establish this claim, she points to her self-reports of pain to Dr. McDowell during her psychological assessment in March 2021 and her OCF-12 which describes her limitations in Activities of Normal Life.  I do not find these self-reports persuasive, as they are not consistent with the concurrent medical evidence she filed. Soon after the period that the applicant was self-reporting severe pain in March and May 2021, she attended at her family physician’s office in July 2021 but did not mention any physical injury or pain. If the applicant was experiencing severe, persistent and functionally limiting pain, it is difficult to see why she would have raised the issue with a psychological assessor, but not with her medical doctor.

[19]  As a result of the lack of objective medical evidence, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain.

Does the Applicant have Psychological Impairments that would warrant removal from the MIG?

[20]  I find the applicant has provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.

[21]  In support of her position, the applicant submitted the CNRs of Dr. Su, a pre-screening interview by Dr. McDowell for an initial assessment on July 18, 2019, and the applicant’s various self-reports of psychological impairments to her chiropractors, which the applicant asserts establish her ongoing difficulties with sleep, nightmares, anxiety and driving phobia.

[22]  Further, the applicant relied on the Psychological Assessment Report of Dr. McDowell dated March 5, 2021 (the “Psychological Report”), wherein the applicant was diagnosed with Major Depressive Disorder with Anxious Distress and Specific Phobia (travel)[10]. The report recommends that the applicant undergo 14 sessions of psychological treatment.

[23]  In response, the respondent submits that: a psychological pre-screening interview is insufficient evidence of a psychological impairment warranting removal from the MIG as it is based on the applicant’s self-reports; that the applicant’s family doctor did not refer her to a psychologist and that the applicant has only sought care from Dr. Su twice in two and a half years for accident-related injuries.

[24]  Although the respondent addressed some of the evidence put forward by the applicant, namely, the pre-screening interview and CNRs of Dr. Su, the respondent did not address Dr. McDowell’s Psychological Report in any way in its submissions.

[25]  The respondent did not submit an insurer’s examination of the applicant. I note that pursuant to s.44(1) of the Schedule an insurer is not obligated to conduct its own examination of the insured and the section simply holds that an insurer may require an examination.

[26]  However, given the fact that the applicant relies on a s.25 Psychological Report where a psychologist provides the diagnostic and statistical manual of mental disorders - DSM-5 diagnoses of Major Depressive Disorder and Travel-Related Phobia, without counter evidence or arguments to refute the diagnoses, the only diagnoses I have to base my decision on, is the applicant’s evidence and submissions.

[27]  While I am alive to the respondent’s submissions that the applicant only attended at her family physician’s office twice with psychological complaints post-accident and that the pre-screening interview with Dr. McDowell relied on the applicant’s self-reports, the fact remains that the applicant subsequently obtained an additional, more comprehensive assessment.

[28]  The applicant accurately points out in her reply submissions that the respondent not only did not order its own examination of the applicant, but it did not appear to acknowledge Dr. McDowell’s Psychological Report at all in its submissions.  Whether by oversight or omission, the respondent inaccurately claims that the applicant solely relies on her pre-screening interview and the CNR’s of Dr. Sun to establish psychological impairment.

[29]  Moreover, the respondent asserts that the pre-screening interview is insufficient evidence of a psychological impairment as it is based on the applicant’s self-reports and did not include diagnostic testing to confirm the results. However, the subsequently obtained Psychological Report did in fact contain diagnostic testing, in addition to the clinical interview and mental status exam.

[30]  As part of the assessment Dr. McDowell administered the Beck Depression Inventory-II, the Beck Anxiety Inventory, the Patient Pain Profile and the Impact of Event Scale – Revised tests[11].  The subsequently obtained Psychological Report contained a more fulsome assessment and DSM-V diagnosis. The respondent’s failure to address this Psychological Report leads to result that Dr. McDowell’s conclusion, that the applicant sustained psychological impairments due to the motor vehicle accident, remains uncontested. The respondent did not submit any evidence, opinion or any argument to counter such diagnoses.

[31]  Accordingly, I find that given Dr. McDowell’s diagnoses, the applicant has provided sufficient evidence to demonstrate, on a balance of probabilities, that she suffers from psychological impairments that justify removal from the MIG.

Summary Comment

In Ontario, victims injured in an automobile accident are entitled to prescribed benefits known as the Statutory Accident Benefit Schedule which includes limited coverage for medical, rehabilitation, and attendant care, expenses.

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