Neutral Citation: 2016 ONFSCDRS 242 FSCO A15-002024

BETWEEN:

Amensie Washington, Applicant

and

Unifund Assurance Company, Insurer

REASONS FOR DECISION

Before: Arbitrator Lynda Tanaka Heard: In person at ADR Chambers on June 17 and 20, 2016

Appearances: Mr. Vikram Bhandari participated for Ms. Amensie Washington Mr. Geoffrey Keating participated for Unifund Assurance Company

Issues:

The Applicant, Ms. Amensie Washington, was injured in a motor vehicle accident on March 6, 2014 and sought accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Did the Applicant sustain an impairment that is a minor injury within the meaning of the Minor Injury Guideline (“MIG”) ² as a result of the accident?
Is the Applicant entitled to receive medical benefits for service provided by Dr. Reza Babaloui from Markham Pain Solution Centre, under treatment and assessment plans as follows: a) $1,795.20 for chiropractic treatment & physiotherapy, dated July 21, 2014;³ b) $1,507.60 for chiropractic treatment, dated August 27, 2014;⁴ c) $1,348.00 for chiropractic treatment, dated October 6, 2014;⁵ d) $1,188.00 for chiropractic treatment, dated November 17, 2014;⁶ and e) $490.00 for chiropractic treatment and massage therapy, dated January 13, 2015?⁷
Is the Applicant entitled to interest for overdue payment of benefits?
Is the Applicant entitled to a special award pursuant to s. 282(10) of the Insurance Act because the Insurer unreasonably withheld or delayed payments?
Is either party entitled to its expenses of the Arbitration?

At the outset of the Hearing, the Applicant withdrew her claim for weekly income replacement benefits that had been included in the Application for Arbitration.

Result:

The Applicant did not sustain an impairment that is a minor injury within the meaning of the MIG as a result of the accident.
The Applicant is entitled to receive medical benefits for service provided by Dr. Reza Babaloui from Markham Pain Solution Centre, under treatment and assessment plans as follows: a) $1,795.20 for chiropractic treatment & physiotherapy, dated July 21, 2014; b) $1,507.60 for chiropractic treatment, dated August 27, 2014; c) $1,348.00 for chiropractic treatment, dated October 6, 2014; d) $1,188.00 for chiropractic treatment, dated November 17, 2014; and e) $490.00 for chiropractic treatment and massage therapy, dated January 13, 2015.
The Applicant is entitled to interest for overdue payment of benefits.
The Applicant is not entitled to a special award pursuant to s. 282(10) of the Insurance Act because the Insurer did not unreasonably withhold or delay payments.
If the parties are unable to agree on the entitlement to or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

The Accident

The Applicant was the driver of her automobile when it rear-ended a car that had cut her off in traffic on March 6, 2014. The Applicant gave no further details of the accident itself. The Applicant is now 37 years old and a wife and mother with two children. She has a college education as a personal care worker and works part-time in twelve hour shifts at two different hospitals. The OCF-2s (Employer’s Confirmation Form) provided by her employers indicate that at the time of the accident, she was a part-time employee and her duties were as a patient support assistant at one hospital and “team attendant – surgical suites, ortho and rehab” at another. Her hours worked in any one week prior to the accident varied considerably.

The injuries she suffered in the accident are noted in the complaints recorded in the family doctor’s notes⁸ as constant dull upper and lower back pain that increased with flexion and was not relieved with Advil and Tylenol. She had pain in all ranges of movement with more on the left side. The doctor diagnosed her with mechanical back pain of the lumbar and thoracic region. She returned to her family doctor with back pain a few weeks later on March 27 when he prescribed Tylenol #3 and Naproxen, an anti-inflammatory, and again on July 22, 2014. According to her treating chiropractor in the OCF-18s filed after July 21, 2014 (Exhibits 1 to 6), she sustained a WAD-III whiplash injury and strains and sprains throughout her shoulder, as well as strains and sprains in her thoracic and lumbar spine.

LEGISLATIVE PROVISIONS

Medical benefits are recoverable under Part III of the Schedule. The benefits are defined in s. 15 as all “reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident”. Section 18(1) sets out the limitation of $3,500.00 for medical and rehabilitation benefits “payable in respect of an insured person who sustains an impairment that is predominantly a minor injury”. A minor injury is defined in s. 2 as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury”. It does not include a WAD-III whiplash injury. Section 18(2) provides that the monetary limitation 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 limited to the monetary limit or to the goods and services authorized” under the MIG.

The entitlement to a special award is set out in s. 282(10) of the Insurance Act and it requires that an Applicant first establish that the Insurer has unreasonably withheld or delayed payments. It provides for recovery of up to 50 per cent of the amount to which the insured person was entitled at the time of the award (including unpaid interest on overdue payments) and recovery of interest on that total amount at an increased rate of interest.

CASE LAW

The parties provided cases for my consideration. Both agreed that the onus is on the Applicant to prove her entitlement and to meet the statutory tests, on the balance of probabilities.

The Applicant provided cases addressing the special award claim. Those cases establish the following principles:

In discharging its duty to adjust a file under the Schedule, the Insurer is not acting reasonably if it relies on out of date or old medical information.
“Unreasonable” means excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The Insurer is expected to apply sound and moderate judgment.
An Insurer is unreasonable if it fails to consider reports of treating physicians. It has an obligation to re-evaluate a claim and cannot turn a blind eye to evidence of disability.
The Insurer must adjust the file in good faith. It cannot rely selectively on information it chooses to use. It must read its own independent assessors’ reports with a critical eye.
The Insurer erred in relying on a one year old medical report when the doctor did not say the Applicant was fully healed or pain free, but that reliance was not sufficient to support an award of a special award.

With respect to the cases dealing with the evidence to support an order that a party’s benefits were not confined by the MIG, Unifund provided cases that establish that the evidence to bring someone out of the MIG must be “compelling”, that is, that treatment plans must be shown to be reasonable and necessary (even if the Applicant’s injuries no longer are predominantly minor); and that the requirement to prove that treatment is “reasonable and necessary” means treatment that is something more than helpful.

ISSUE 1 – MIG

As noted above, the chiropractor who provided the treatment plans, Exhibits 1 to 4, included in the description of injuries a WAD-III injury. WAD-III injuries are not covered by the MIG. The only reference to the Applicant suffering a WAD-III injury is in the OCF-18s and the author of those does not suggest that the WAD-III is a reason for her to receive non-MIG treatment. The family doctor does not diagnose that condition, and the Applicant does not rely on it as a reason for her to be taken out of the MIG, so I conclude that there is insufficient evidence of the WAD-III injury to support that argument.

To establish a pre-existing medical condition to satisfy the requirements of s. 18(2) of the Schedule, the Applicant provided testimony and documentary evidence, including medical reports by her treating health care professionals, concerning a workplace injury in 2012. On April 23, 2012, the Applicant was injured while working in a private home as a personal care worker. The Applicant’s task was to assist a senior who had limited mobility because of a stroke. In the course of going up stairs, the senior fell back onto the Applicant and pushed her backwards down the stairs. They landed at the foot of the stairs - the Applicant on her back and the senior on top of her. The Applicant was taken to the hospital by ambulance and sent home with prescription medication for pain.

The clinical notes and records of her family doctor indicate that, following that workplace injury, the Applicant complained of back pain. She was either off work or worked on modified duties at the hospitals. She suffered back spasms of such severity that her legs gave out and she fell. One such fall in November 2012 resulted in her fracturing her left foot.⁹ The treating doctor recommended, in his Ambulatory Care Clinic Report, that she start “some repeat rehabilitation therapy for her back.”¹⁰

The Applicant went through treatment to relieve the pain from the workplace injury but was significantly restricted in her daily activities. As months of treatment passed with little significant recovery, her family doctor arranged an MRI of her back because of the back pain. The MRI Report (Exhibit 15) identified a single disc bulge and a sacralisation of the L5 vertebrae. Her family doctor diagnosed chronic pain in her back. Eventually the Applicant became depressed, as the back pain kept her from caring for her family and being active. She became isolated and very concerned about re-injuring herself. The Workers Safety and Insurance Board (“WSIB”) referred her to Altum Health (“Altum”) for their Back and Neck Specialty Program for physical rehabilitation. In addition, Altum provided her with a Concurrent Mood and Anxiety Assessment and treatments by psychiatrists and psychologists.¹¹

The Applicant began attending Altum in May of 2012. Altum issued numerous progress reports in 2012 and 2013. In the November report (Exhibit 20, dated November 14, 2012), there is a psychological treatment plan recommended for an additional 10 to 15 sessions of concurrent treatment to be utilized by both the psychotherapy and psychiatric treatment providers. The future sessions were to address the Applicant’s “significantly depressed mood” and were to include treatment for her fear of re-injury and further harm. She reported, at this time, to be dealing with chronic and constant pain, even though it was seven months after the workplace injury. She was given a prescription for an increased dose of medication to treat her depression.

In December 2012, she was assessed by an occupational therapist at Altum and began a 6 week rehabilitation program with treatment twice a week. At that time, she had not returned to work because of her depression. In the subsequent progress report of December 24, 2012, the occupational therapist reported that she had participated well in the program and was slowly working towards improving strength and functional activity tolerances. In the report, dated January 2, 2013, a further back spasm and fall was documented, as was her continued significant depression. She reported that she had tried to commit suicide by an overdose of the medication. As a result, her husband was given control of her medication, and further psychological treatment was recommended.¹²

At the time of the accident, over a year after the January 2, 2012 report (Exhibit 25) was completed, the Applicant had returned to work on full, not modified, duties.

She testified that she was told at the hospital that, having injured her back once, she would be susceptible to injuries to it in the future.

After the accident, on receipt of treatment plans, Unifund approved chiropractic treatment but denied the Applicant any treatment beyond the $3,500 MIG limit. Specifically they denied the treatment plans for chiropractic treatment on the basis that there was “insufficient compelling evidence of pre-existing injuries or conditions and insufficient medical documentation to persuade [Unifund] that the accident-related injuries fall outside of the MIG.”¹³ In addition, an independent examination was conducted by Dr. Charanjit Sandhu, MD, Occupational Medicine Physician, on September 3, 2014. In his report, dated September 17, 2014,¹⁴ Dr. Sandhu concluded that the accident related injuries were predominantly myofascial sprains which would fall within the MIG. In that report, Dr. Sandhu also indicated that the Applicant demonstrated a restricted range of motion of her lumbar spine which correlated with her complaints of low back pain. He also noted pain on palpation of the paravertebral muscles of her lumbar spine and tenderness on palpation over both shoulders (trapezius). His impression was that her presentation was consistent with residual symptoms from myofascial sprains to her lumbar spine and that the focus of her rehabilitation program should now be an active independent exercise program, something she was already doing.¹⁵ Dr. Sandhu did not express the opinion that her injuries had resolved or that she was pain free.

In 2016, shortly after the 104 weeks post-accident date (March 6, 2014), the Applicant was seen for a Social Emotional Assessment on March 30, 2016 by Mr. Joshua Pugen, MSW, RSW. Mr. Pugen concluded in his report that: “The intensity of her current social, emotional, relationship, and financial stress can be attributed to the motor vehicle accident… March 6, 2014 and a subsequent loss of role functioning within her family and community”. He concluded that she “suffers from ongoing physical and psychological impairments that warrant treatment based intervention.”¹⁶

A Functional Abilities Evaluation was conducted for the purposes of this Hearing by Dr. Justin Guy, Chiropractor, who assessed her on April 27, 2016. In his report,¹⁷ Dr. Guy concluded:

[the Applicant] suffers from ongoing physical and functional limitations as a direct result of the motor vehicle accident as well as an exacerbation of pre-existing injuries, namely to her lower back.¹⁸

Dr. Guy specifically noted that she gave a sincere effort during the strength testing and that clinical observations were consistent with her reports of pain during reaching and occasional mobility testing. Under “Recommendations” in his report, he recommended a psychological assessment, a driving anxiety assessment and a social emotional assessment, as well as a chronic pain assessment, an active rehabilitation program, occupational therapy, an orthopedic assessment, and neurological assessment together with assistive devices.

The Applicant testified that in January and February 2015, she was again injured in separate workplace accidents, both in a hospital when a patient fell and she tried to catch the patient to prevent patient injury. In both instances, she injured her back. In late April 2015, she went for an examination by Dr. J-P Champagne at the request of the WSIB. Dr. Champagne recorded her past medical history as follows:

Mrs. Washington denies any pre-existing or concurrent medical conditions.

Mrs. Washington reports that she was involved in several previous work-related injuries… dating back 3 years ago where she sustained injuries to her low back which have since completely resolved. She reports that she was involved in a previous motor vehicle accident in March 2014 where she sustained injuries to her neck and low back which have since completely resolved.¹⁹

Dr. Champagne recommended that she return to work on modified duties for a period of time and further that she have more treatment to assist her recovery.

In 2016, Unifund went back to Dr. Sandhu and provided him with more documentation including Dr. Champagne’s report, OHIP records, prescription records, the family doctor’s clinical notes and records, and the two assessments obtained by the Applicant in 2016. Dr. Sandhu did not see the Applicant again. He was asked whether or not the new information affected his opinions and conclusions in the September 3, 2014 report. His response in his subsequent Addendum Report based on the paper review, dated June 10, 2016,²⁰ was:

After a review of the additional documents, my conclusions remain unchanged as there was no objective evidence to change the diagnosis of [the Applicant’s] accident related injuries. Her accident related injuries were consistent with residual symptoms from myofascial sprains to her lumbar spine.²¹

In his Addendum Report of June 10, 2016, he did not express any opinion on whether she had any pre-existing conditions as required under s. 18(2) of the Schedule to take her out of the MIG, but he addressed that omission in his evidence in chief in the Hearing, testifying that she had no pre-existing condition.

The Applicant testified that she continues to suffer pain and limitations on her daily activities as a result of the accident injuries. She testified that she has never fully recovered from the first workplace accident in April 2012²² and that the car accident in 2014 set her recovery back again. Because she was not given adequate treatment in 2014 after the car accident, she has suffered further injuries to her back in the workplace in 2015 that have not resolved. She continues to suffer pain and works around it as best she can at her work, taking breaks and changing her position frequently as needed. She feels that she is not able to care properly for her family and that her husband has had to carry the majority of the workload for housekeeping and maintenance, caregiving and looking after her. This inability to fulfil what she regards as her role in the family and to be active socially has led to her being isolated and causes her stress. She relies on the Guy and Pugen Reports, the Functional Evaluation Report and Social Emotional Assessment Report, both prepared in the spring of 2016, referred to above.

The Applicant submits that her injuries fall outside the MIG primarily on the ground that she has pre-existing injuries that will prevent her from achieving maximal recovery from the minor injury pursuant to s. 18(2) of the Schedule but also that she suffers from chronic pain and psychological issues such that her injuries are not predominantly soft tissue.

Unifund submits that there is no medical opinion stating that the Applicant has a pre-existing medical condition to bring her within s. 18(2). Unifund relies on:

a) the gaps in the dates of the medical records both from Altum and from her family doctor. Based on those gaps, Unifund argues that her treatment for the 2012 workplace accident concluded in early 2013 because her injuries had resolved; b) her statements to doctors that her workplace injuries had resolved prior to the accident, including the notation in her family doctor’s notes when she first went to him after the motor vehicle accident; and c) her workplace record that she was working on full duties immediately before the accident, rather than modified duties.

On the psychological issues, Unifund relies on the lack of notation in the clinical notes and records of the family doctor of any psychological issues after the accident or reference to psychological issues in the one year prior to the accident in those same records or in the medical evidence after the accident. Unifund submits that in arriving at my decision, I cannot rely on the Guy and Pugen Reports to award benefits under the Schedule because their assessments occurred after her two workplace accidents in January and February 2015 in which she also sustained back injuries.

Unifund further relies on its medical opinion of Dr. Sandhu that there is no pre-existing medical condition and no objective evidence in the form of MRIs or other diagnostic imaging that establishes her back pain. It is myofascial or mechanical back pain, and that impairment falls squarely within the MIG.

With respect to statements made by the Applicant to various health care providers which are inconsistent with her evidence as to the status of her injuries, Unifund relies on the report of Dr. Champagne from April 2015 in which there is a record that the Applicant told him that the motor vehicle accident injuries have resolved. Unifund relies on the report of Dr. Sandhu as to what the Applicant told him about the workplace injuries suffered in 2012. Unifund relies on the lack of prescription summaries to support the medication history that she testified to, because only one pharmacy’s records were produced even though the production request and obligation was to produce all pharmacy records.

The Applicant responded in cross-examination that the statements that are attributed to her in Dr. Champagne’s report (that her 2014 accident injuries had completely resolved and that she had no pre-existing conditions) “never left my mouth” and that she did not go in to see her doctor to complain in the period between January 2013 and the accident because she was being treated by Altum in that period. Also, her family doctor treats her whole family so she would see him when, for instance, one of her children was seen by him. She testified that he was aware of her ongoing back pain, even if he did not make a note of it or make a claim for treating it on OHIP.

It is not clear how long the treatment that Altum was providing continued after the last report filed in the matter, which is dated January 30, 2013. On review, the January 30, 2013 report does not appear to be a final report which would say that the Applicant is now clear of the need for further treatment. In fact, the report requests approval of additional treatment and documents the following:

Ms. Washington continues to struggle with fairly significant symptoms of a major depressive disorder. She has shown some response to her Effexor 225 mg which is the larget (sic) dose, however her symptoms are not fully resolved and her sleep continues to be quite highly disrupted.²³

The recommendations in the January 30, 2013 Altum Report²⁴ contemplate ongoing treatment on the basis that “If treatment were to cease, it appears likely that her mood would deteriorate and her pain and anxiety would increase”. She was scheduled to be seen by a psychiatrist in three to four weeks’ time (at the end of February 2013). The psychologist authoring the report indicates that there will be future sessions to continue to monitor her pain and fear of re-injury and further harm with co-ordination with the Back and Neck Rehabilitation Team. I therefore accept the Applicant’s testimony that she continued to receive treatment from Altum after January 2013.

With respect to lack of references to back pain in the family doctor’s CNRs in the period March 2013 to the accident, except for a July 2013 notation, I accept the Applicant’s testimony that she had a longstanding patient doctor relationship with this doctor and that he was always aware that her back pain continued throughout this period, even though she did not seek his specific help with that issue on every visit or whenever it bothered her. It is clear from the family doctor’s notes, as well, that the Applicant had not fully recovered from the workplace injuries in the spring of 2013. In the doctor’s note of March 15, 2013, almost one year after the workplace injury, the doctor notes that the Applicant is wearing a back brace to return to work and that she has been forced back to work. Her duties are modified so there is no excessive bending or lifting. In July 2013, the doctor notes that her back pain has returned at work. As for her failure to go to her doctor for back pain in the period between July 2013 and the accident, I find the Applicant’s explanation credible and that she continued to cope with her limitations.

In face of this evidence, Unifund’s position that the workplace accident injuries had resolved completely by the date of the accident cannot be accepted.

With respect to the prescription history, the Applicant responded to the attack on her credibility as to the level of medication she took for pain at the time of the accident, saying that she does not always use the one pharmacy for which records have been produced and that she was continually taking Tylenol 3 for her pain. There is support for her evidence that she had other prescriptions in the Altum records where there were references to prescriptions given to the Applicant that are not reflected in the prescription history. Her treating chiropractor indicated on the OCF-18s that she was taking prescription medication including Tylenol and Naproxen (an anti-inflammatory) that she (the treating chiropractor) had not prescribed. These medications were prescribed by the Applicant’s family doctor. Unifund’s submission is that there is a consistency between the prescription record and the clinical notes and records of the family doctor, so the Applicant’s testimony is not credible. In fact, a close read of the OHIP summaries as well as the Altum Reports, indicates that the Applicant did receive other prescriptions and that there is not total consistency between the family doctor’s notes and the prescription summary. Therefore I am prepared to accept the Applicant’s testimony as to her use of prescription drugs for her ongoing pain.

With respect to her return to work on full duties prior to the accident, the Applicant testified that she worked because she had a mortgage and two children to support. She testified that her work in the operating room does not normally involve activities that would be a risk to her back but that her other job, assisting nurses with patient care, would. She testified that she is able to get assistance from her co-workers and move about as needed to relieve her symptoms. I also have the evidence of the family doctor’s note in March 2013 that the Applicant returned to work using a back brace, that she was forced to go back to work, and that she worked with workplace limitations. I therefore reject Unifund’s position that her return to work is evidence that her back pain issues had resolved prior to the accident.

Unifund’s position is that there is no proof of psychological impairment prior to the accident and indeed after the accident. There is, however, evidence in the Altum Reports as noted above as to the anxiety and depression she suffered from the prolonged recovery from the April 2012 workplace injury. There is an extensive record of Altum’s treatment including medication to address her depression, and the final report (January 30, 2013) indicates that her depression is not cured but rather continuing. I accept the Applicant’s evidence that after the accident she “went back to square one” with the pain and mobility limitations, and that once again anxiety and isolation became part of her life. Indeed the Altum Reports confirm this potential in 2013 in wake of her previous back injury when the treating health care practitioners indicated that without ongoing treatment there was a risk of her reverting to depression and anxiety and pain. That phrasing implies that she is in fact achieving some recovery from the anxiety and depression but that she is at risk of reversing that recovery. Further, while the chiropractor completing the OCF-18s was not qualified to opine on psychological issues, there is a consistent notation of anxiety and what is described as post-traumatic stress syndrome.

Unifund also relies on Dr. Champagne’s record in April 2015 that she “denies any pre-existing or concurrent medical conditions” and that her previous workplace injuries and accident injuries had completely resolved. Unifund submits that this is proof that the pain, depression and anxiety that she suffered after the workplace accident in 2012 had completely resolved by 2015, as had the accident injuries. Therefore the treatment plans, all dated in 2014 and early 2015, are not reasonable and necessary and, also, the Applicant had no pre-existing condition at the date of the accident. The Applicant not only denied that she had made the statements but she testified that there is a difference between an injury and a condition. She understood “condition” to refer to a chronic illness or something like cancer. Dr. Champagne does in fact record that she told him about her previous injuries and surgery. This would be consistent with her differentiation between conditions and injuries.

The Applicant vigorously denied lying at any stage of this process. I note that Dr. Champagne seemed to be taken by surprise when he was told in cross-examination that his report was being used to deny the Applicant accident benefits. The focus for Dr. Champagne was the assessment of a worker who, two months after a second workplace accident in the space of one month, was still complaining of significant pain. He recommended that she continue on modified duties and have further treatment. Dr. Champagne had no recollection of the specific assessment. The file indicates that she obtained physiotherapy treatment in the winter of 2015 under the WSIB program.

It is important to put the statements Dr. Champagne recorded in the context of the case. In the winter of 2015, the Applicant had two workplace accidents that injured her back in the space of one month. She had been denied any further accident benefits (and therefore any further treatment for her back) by Unifund and she had not completely recovered. The WSIB represented the only opportunity for her to get physiotherapy treatment for her pain. Dr. Sandhu testified that sometimes Applicants will try to create a more appealing story in order to get treatment. If I accept that Dr. Champagne has correctly recorded what the Applicant told him, then I find that this Applicant overstated her recovery from the accident injuries to Dr. Champagne in order to get treatment she needed promptly, as one might if back pain is an ongoing and constraining fact of life. In most cases, I would regard such an overstatement as very damaging to an Applicant’s credibility, but in this chronology and with the Applicant’s medical history, I treat it as a very human response to Unifund’s refusal to provide treatment. Also, the statement does not assist Unifund, as the denial of benefits in the OCF-9s in the summer and fall of 2014 and January 2015 pre-date the April 2015 examination by Dr. Champagne. If the treatment plans were reasonable and necessary at the time they were submitted, then a statement, vehemently denied, cannot be relied on by Unifund to deny the benefits.

The totality of the evidence does not leave me with an impression that the Applicant is a malingerer. I accept the Applicant’s testimony that she has not been free of back pain since the accident and continues to suffer from it. While the strains and sprains were certainly of the type that fall within the MIG (except for the WAD-III whiplash), the evidence establishes a medical history of back injury in 2012 in the same area as was injured in the accident, requiring prolonged and specialized treatment, including psychiatric and psychological therapy, to recover from those injuries. There is documented evidence by health practitioners that provides convincing evidence that she will probably require considerable treatment, both physical and psychological, to cope with the ongoing impairment to her back suffered in the accident and that she will not achieve maximal recovery from the minor injury within the MIG monetary limits. That history, documented by health practitioners, is sufficiently proximate and sufficiently documented that it is, in my view, compelling. I conclude that she will likely not respond within the anticipated $3,500 of treatment. There was, and there remains, a significant risk that, in the face of obdurate pain, she may “catastrophize” (as Altum noted she was prone to do²⁵) concerning re-injury and may succumb to depression and anxiety. I find that she is one of those extraordinary cases where the MIG monetary limit should not apply to restrict her obtaining additional treatment.

Unifund relies on the lack of a health care professional’s report saying that the Applicant’s injuries do not fall within the MIG or saying that she has a pre-existing medical condition as required by s. 18(2). The Schedule is intended to provide an expeditious and cost-effective process for securing benefits. I recognize that the issue of pre-existing conditions is addressed specifically in the OCF-3 Disability Certificate and in the OCF-18 form, and that applicants sometimes provide a separate report by a health care practitioner solely for the purpose of establishing the pre-existing condition. On the totality of the evidence and in the context of this Applicant’s mental health history, particularly the documentary evidence in the form of the Altum Reports, I find that there is sufficient evidence to meet the requirements of s. 18 and that an Applicant in these circumstances should not be forced to go to the expense of obtaining a separate report.

ISSUE 2 - Treatment Plans Denied

The treatment plans that were denied were marked as Exhibits, as were the OCF-9s in which Unifund denied those plans. The Applicant has incurred additional treatment under those plans, beyond what was approved.

The Applicant says the treatment plans are reasonable and necessary. Unifund says they are not, and that the Applicant must establish that the treatment would be more than helpful. The Applicant testified that the treatment was helpful and she did improve; further she testified that she would take the treatment if it were funded. She told Dr. Sandhu that the treatment had been helpful and that she had recovered 40 to 50% from the accident related injuries by September 2014.²⁶ Unifund submits that there is no evidence beyond the Applicant’s testimony of any benefit whatsoever or even of the nature of the treatment. Therefore Unifund says the Applicant has not discharged her onus of proof on the balance of probabilities. Unifund also relies on her failure to go to her family doctor in the fall of 2014 when the treatment plans were being refused to complain about back pain as inconsistent with her evidence of ongoing pain.

I am satisfied on the balance of probabilities that the OCF-18s for chiropractic treatment denied by Unifund are reasonable and necessary. I find that there is sufficient documentation of the benefit that she was receiving in the treatment plans themselves, as well as in the Applicant’s history where Altum documented her slow but consistent progress in 2012-13 under their treatment for a back injury. Her lack of attendance to see her family doctor while she was undergoing the chiropractic treatments from the date of the accident forward establishes that the treatments were effective enough that she did not have to seek additional medical attention.

I note that while Dr. Sandhu was asked to conduct a paper review to determine if his view of her injuries as falling within the MIG still stood, he was not asked and did not include in his 2016 report any comment on any pre-existing condition. After reviewing the documents concerning her treatment by Altum, he did not include the opinion that she did not have a pre-existing condition in his report but only in the witness stand. I do not find his evidence persuasive when I consider it in the context of all the evidence in this regard given in this Hearing.

ISSUE 3 - Special Award

The Applicant has testified that at the time of the workplace injuries in 2015, her accident injuries had not in fact fully resolved and that, because of the failure to get more treatment she suffered more severe injuries in the workplace and took longer to recover than would otherwise be the case. The pattern of her injuries from her 2012 workplace accident so clearly documented in the Altum records supports that testimony. She described herself to Dr. Sandhu as set out above, and her evidence is that she never recovered the balance of the 50 to 60%.

Unifund received OCF-18s claiming additional benefits beyond the MIG starting in July 2014 and continuing until January 2015. Dr. Sandhu was only asked to respond to one of the OCF-18s that were submitted. That is the only one on which there is an opinion to support Unifund’s denial of benefits. Unifund repeatedly requested in the OCF-9s that the Applicant provide medical evidence to support her being taken out of the MIG. In each of the OCF-18s, her treatment provider ticked off the box that the injuries were minor injuries within the meaning of the MIG. The barriers to recovery were identified as post-traumatic stress disorder and the severity of the injuries. It was not until an OCF-3, dated January 13, 2015 (Exhibit 34), that her treatment provider noted in Part 8 of the form, “Prior Conditions”, that she had a back injury two years prior to the accident and had had physiotherapy.

The Applicant submits that Unifund has failed in its duties under the Schedule and has unreasonably withheld payments. She relies on the failure of Unifund to send her for any further independent examination beyond that of Dr. Sandhu in September 2014 at the 6 month mark. In the following four months, additional treatment plans were submitted and no new independent examination was arranged to respond to those. Even in face of the Altum Reports and the Guy and Pugen Reports, Unifund only arranged a paper review by the doctor who had not seen her in 18 months. She submits that Unifund has been unreasonable in not approving the treatment plans in face of the evidence of her previous medical history. She submits that her recovery from the 2015 workplace accident injuries was hampered by the lack of treatment for the motor vehicle accident injuries. She suffers ongoing back pain.

Unifund says it did reassess the claim and that the text of Exhibit 27, the OCF-9 it sent to deny benefits, clearly indicated that it reviewed the Guy and Pugen Reports. Therefore it says it did not act unreasonably. Its position is that Dr. Sandhu’s report is sufficient response to all the treatment plans because it supports Unifund’s position that this is a minor injury and the $3,500 has been used up. The Applicant must supply the necessary medical records to support the position that she was out of the MIG and she did not do so in response to the OCF-9s that requested that information. Unifund relies on the workplace accidents in 2015 as intervening events that triggered additional visits to the family doctor where there were few visits to the family doctor to complain about back pain after the accident.

I agree with Applicant’s counsel that the wiser course than the one Unifund followed in early 2015 would have been to send her for a further independent examination to address the potential that early additional treatment was needed; if not then, then on receipt of the Guy and Pugen Reports. The tenacious submission of further OCF-18s requesting treatment that continued in face of the denials should have triggered something in Unifund to have a more detailed look at what was going on with this client, especially as one cannot read Dr. Sandhu’s report as concluding that her injuries were resolved. For instance, he notes specifically that she had pain during the course of his examination and that she was taking an opioid, Tylenol #3 (20 to 28 tablets per week), but there is no indication that he questioned her further on the reason for that. At some point earlier than in this Arbitration, the history of Altum’s extensive treatment of the Applicant should have come out. It was, however, up to the Applicant to bring that history to Unifund’s attention. The reports may not have been in her actual possession but her doctor had them.

If Unifund had moved in January 2015 to respond to the OCF-18s with an independent assessment, the record here of the contribution of the various injuries she has suffered might have been much clearer. As it is, the Applicant’s testimony is that she was getting better with the treatment for her accident injuries, but that, because it stopped before her injuries had resolved, she was not fully recovered when she had her workplace accidents.

I do not have evidence of when Unifund received the documentation as to the pre-existing injuries and psychological issues, including Altum’s treatment and the family doctor’s clinical notes and records. I note in Exhibit 33 that counsel for Unifund is seeking in November 2015 specific documents in a targeted request for production, so I assume they had the family doctor’s clinical notes and records by then. There is a request for the complete Altum files so Unifund must have been aware of the Altum Reports by then for it to include such a request. What I am lacking is specificity in when it had the Altum Reports to review as those reports clearly document the medical history.

Despite the failings I have noted above, I do not see in the conduct of Unifund the excessive, imprudent, stubborn, inflexible, unyielding or immoderate conduct that would attract a special award under the case law. The special award is intended to be punitive, and to act as a deterrent. The award should be of sufficient amount to cause an Insurer to reflect on how it might better have served its client - the Applicant - and meet the policy intent of the Schedule.²⁷ There is also an evidentiary gap so that I cannot say when Unifund should have been aware of the underlying risks for the Applicant in achieving recovery. It did not have the Altum information in the summer and fall of 2014 when it was denying the OCF-18s that are in dispute. Therefore I dismiss the claim for a special award.

EXPENSES:

The Applicant has been successful in all her claims except for a special award. If the parties are unable to agree on the entitlement to or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

September 14, 2016

Lynda Tanaka Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

The Applicant did not sustain an impairment that is a minor injury within the meaning of the Minor Injury Guideline as a result of the accident.
The Applicant is entitled to receive medical benefits for service provided by Dr. Reza Babaloui from Markham Pain Solution Centre, under treatment and assessment plans as follows: a) $1,795.20 for chiropractic treatment & physiotherapy, dated July 21, 2014; b) $1,507.60 for chiropractic treatment, dated August 27, 2014; c) $1,348.00 for chiropractic treatment, dated October 6, 2014; d) $1,188.00 for chiropractic treatment, dated November 17, 2014; and e) $490.00 for chiropractic treatment and massage therapy, dated January 13, 2015.
The Applicant is entitled to interest for overdue payment of benefits.
The Applicant is not entitled to a special award pursuant to s. 282(10) of the Insurance Act because the Insurer did not unreasonably withhold or delay payments.
If the parties are unable to agree on the entitlement to or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.