M. S. v. Unifund Assurance Company, 2017 CanLII 39713

Date : 2017-06-05

Tribunal File Number: 16-001849/AABS

Case Name: 16-001849 v Unifund Assurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

M. S.

Applicant

And

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Louise Bélanger-Hardy

APPEARANCES:

For the Applicant: Volha Vinahradava, paralegal.

For the Respondent: Calogero Rumeo, counsel.

HEARD: Written Hearing: February 7, 2017

Overview

1. This matter involves a claim arising from a motor vehicle accident that took place in Ontario on October 23, 2013. The applicant, 70 years old at the time of the accident, was the driver and sole occupant of the automobile. He did not attend at the hospital on the day of the accident.

2. The day after the accident, the applicant attended at a walk-in clinic and a few days later, on October 29, 2013, he saw his family physician, Dr. Danial, complaining of headaches, back, shoulders and neck pain.

3. There were a number of treatments by a physiotherapist, Mr. S. Pearson at PhysioMed Humber until September 2014. The applicant had applied for and received benefits from Unifund Assurance Company (the respondent) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule).¹

4. The applicant claimed for a number of medical benefits and for payment of a non-earner benefit. Following an assessment by its own independent medical assessor, the respondent took the position that the applicant suffered predominantly minor injuries and therefore subject to a treatment cap of $3,500.00. The applicant disagrees with the respondent’s position.

5. The applicant had a cardiac catheterization procedure on September 30, 2014 at Toronto Western Hospital and had triple bypass surgery in January 2015 at Toronto General Hospital. The applicant asserts that the heart problems addressed by these surgeries were exacerbated by the accident. The respondent disagrees.

6. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for a determination of his entitlement to the benefits just described. The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute and the matter was set down for a written hearing.

Issues in Dispute

7. The issues in dispute at this hearing were agreed to by the parties are:²

8. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period from March 26, 2014 to June 7, 2016?

9. Do the applicant’s injuries fall within the Minor Injury Guideline (the MIG)?

The following issues were agreed to by the parties but only become relevant if the applicant’s injuries fall outside the MIG:

3. Is the applicant entitled to receive a medical benefit in the amount of $123.40 for prescription drugs?
4. Is the applicant entitled to receive a cost of examination benefit in the amount of $2,259.78 for chronic pain assessment, recommended by MediAssess Evaluations Inc. in a treatment plan dated February 1, 2016 and denied by the respondent on February 29, 2016?

Decision:

8. For the reasons that follow, I find that the applicant is not entitled to any of the benefits in dispute.

Analysis and Reasons

9. The evidence provided by both parties at the hearing was documentary. I have considered all of the documents submitted by each party.

Issue 1: The Applicant’s Entitlement to non-earner Benefits

10. The applicant submitted that he was entitled to receive a non-earner benefit in the amount of $185.00 per week.

The Law

11. In considering the eligibility for non-earner benefits, section 12(4) of the Schedule, provides that the applicant is not eligible for this benefit until 26 weeks after the accident. Therefore, the eligibility date is April 23, 2014 as the accident occurred on October 23, 2013.

12. Entitlement to a non-earner benefit must be considered in light of section 12(1) of the Schedule which provides that the applicant must prove that he sustained:

“a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit”.

Section 3(7) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if:

“as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.

In Heath v. Economical Mutual Insurance Company,³ the Ontario Court of Appeal outlined several principles applicable to the determination of entitlement to a non-earner benefit. These principles include the requirement that there be a comparison of an applicant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

The Applicant’s Submissions

13. The applicant relies a) on an OCF-3 Disability Certificate dated January 21, 2014 from physiotherapist S. Pearson at PhysioMed; and b) on another OCF-3 Disability Certificate dated November 2, 2016 from Dr. P. Porco, a chiropractor at Mackenzie Medical Rehabilitation Centre; and c) on the applicant’s own affidavit dated January 23, 2017.

14. On March 11, 2014, the applicant attended for an independent medical examination by Dr. O. Shemtov, a full-time emergency physician. In his report (the NEB report), dated March 25, 2014, he concluded that the applicant “does not suffer a complete inability to carry on a normal life as a result of the subject accident”. The assessment was conducted at the same time as an evaluation to determine if the applicant’s impairment fell within the definition of a minor injury (the MIG report). The applicant submitted that the wording of the two reports (the NEB report and the MIG report) was essentially the same except for a few key sentences and this meant the NEB report should be given little weight as it was “completed in advance”.

15. The applicant further submitted that the NEB report was contradictory because, on the one hand, Dr. Shemtov recommended that the applicant “engage in a comprehensive self-directed program” while, on the other hand, he concluded that the applicant did not suffer from a complete inability to carry on a normal life..

16. Finally the applicant argued that Dr. Shemtov was a general practitioner and not a specialist. Referring to the criteria in Heath – referred to above – the applicant submitted that Dr. Shemtov “failed to compare the applicant’s pre-accident versus post-accident lifestyles”. Also, “there was no attempt to thoroughly determine if the post-accident related impairments restricted the applicant from performing the pre-accident activities”. In sum, the respondent’s denial was “arbitrary” and “based on an “incomplete assessment” where none of the” tests prescribed for defining/outlining and determining the eligibility” for NEB were completed.

Analysis

17. As noted in Heath, the determination of eligibility for non-earner benefits requires a comparison of the applicant’s activities and life circumstances before the accident to those after the accident. In this case, the onus is on the applicant, and he has not provided sufficient evidence of the details of his pre-accident lifestyle and activities to establish his eligibility to the non-earner benefits.

18. In the OCF-3 Disability Certificate dated January 21, 2014, physiotherapist S. Pearson checked the boxes stating that the applicant did “suffer a complete inability to carry on a normal life” and “suffer a substantial inability to perform the housekeeping and home maintenance services that he/she normally performed before the accident”. However, no particulars were given regarding which activities or life circumstances before the accident were impacted by the accident.

19. In the second OCF-3 Disability Certificate dated November 2, 2016, Dr. P. Porco, a chiropractor, checked the box stating that the applicant suffered a complete inability to carry on a normal life. Additional information was provided stating that “the injuries suffered in this accident continuously prevent the patient from engaging in normal ADLs⁴, such as, bending, twisting, lifting and prolonged sitting and standing”. The box stating that the applicant suffered a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident was also checked. Again, I note that this OCF-3 provides no information regarding the applicant’s pre-accident activities or lifestyle.

20. Regarding Dr. Shemtov’s report, I note that the report articulated the details of the examination conducted and the information provided by the applicant during the assessment. Even if Dr. Shemtov did not specifically compare the applicant’s pre and post-accident activities, the report confirms that he discussed the matter with the applicant when the social history was taken. The applicant reported that prior to the accident he shared household tasks with his spouse and performed most of the yard work and home repair tasks. He reported that, at the time of the assessment in March 2014, he had returned to performing only light tasks such as vacuuming and some laundry.

21. Dr. Shemtov concluded that the applicant did “not suffer a complete inability to carry on a normal life as a result of the subject accident”. He wrote that the applicant “reported that he was in relatively good physical condition, with the exception of low back pain, prior to the accident in question however as noted he was able to complete his activities of daily living including performing most of the yard work and home repair tasks. Therefore, there are no barriers to recovery that would significantly prevent [the applicant] from achieving maximal medical recovery”. I give more weight to Dr. Shemtov’s assessment and report than to the applicant’s assessors as his report provides a clear rationale, based on his examination of the applicant, to support his conclusion.

22. As for the contention that the NEB report was prepared “in advance”, there is no evidence to support this claim. The fact that the MIG report and the NEB reports are quite similar is not, in and of itself problematic. The assessments for the two types of benefits were done at the same time, so some degree of similarity is to be expected. And, although Dr. Shemtov could have been more explicit in his efforts to compare the level of activity pre and post-accident, as noted above, I find his report and conclusion regarding eligibility for the NEB to be helpful in the circumstances of this case. There is no internal contradiction within the report, as suggested by the applicant. Dr. Shemtov simply referenced the fact that the applicant would gain a benefit from a return to his daily activities and a self-directed program. Being encouraged to exercise and continue daily activities does not preclude a conclusion that a person does not meet the required “complete inability to carry on a normal life” requirement.

23. Finally, I note that in his affidavit, dated January 23, 2017, the applicant did not discuss or mention any of his pre-accident activities and lifestyle. The affidavit is silent on the matter. Much speculation would be required to determine the key activities in which the applicant ordinarily engaged before the 2013 accident. Without this evidence, I cannot conclude that the applicant is continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

Finding on Non Earner Benefits

24. I find on the balance of probabilities the applicant is not entitled to non-earner benefits.

Issue 2: The Application of the Minor Injury Guideline (MIG) and its Exceptions

The Law

25. According to sub-section 18(1) of the Schedule, the sum of medical and rehabilitation benefits to which a person is entitled is limited to $3,500 when the impairment sustained is predominantly a minor injury (defined in section 3(1) of the Schedule as meaning “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”).

26. Section 18(2) creates an exception to this rule when 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 $3.500 limit.” The Minor Injury Guideline⁵ specifies that “compelling evidence should be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner”.

27. Therefore, to succeed in his application to be taken out of the MIG, the applicant must show that his injuries are not minor. He may do this in one of two ways. He may show that the severity of his injuries is such that it causes them to fall outside the definition of minor injuries in the Schedule. Or, if his injuries are not of such severity, he must provide compelling medical evidence that he suffered a pre-existing condition that would result in an inability to recover within the treatment limits of the Guidelines.

28. As I final point, I note that because of the finding I have made regarding the MIG, the medical benefit (the prescription in the amount of $123.40) and the examination benefit (in the amount of $ 2,259.78) are not payable (assuming that the $3,500 MIG limit has been exhausted).

The Applicant’s Submissions

29. The applicant submits that, due to the October 2013 accident, he suffered “severe injuries to his thoracic and lumbar spine, and has gone on to suffer from radiculopathy-related symptoms, and chronic headaches.” He claims that the injuries are so severe that treatment within the MIG would not return him to his pre-accident level of functioning. The applicant also submits that Dr. Danial’s clinical notes and records confirm that medical professionals have identified “more than 10 pre-existing medical issues”, as confirmed by the decoded OHIP summary. The applicant further submits that based on the medical evidence “in conjunction with the severely implicating pre-existing cardiovascular issues that had been exacerbated to the point of heart failure as a result of accident stress, and residual musculoskeletal system sprain/strain pain, the applicant should never have been categorized under the MIG”. Finally, the applicant relies on the OCF-18 for Chronic Pain Assessment by Dr. Wilderman and on the reasoning in Arruda v Western Assurance⁶ [Arruda] to support the proposition that a diagnosis of chronic pain syndrome falls outside of the MIG.

30. To support his claim, the applicant relies on a number of documents which I have considered and will discuss in my analysis.

Did the Applicant sustain a predominantly minor injury?

31. I find that the applicant sustained an impairment that is predominantly a minor injury for the following reasons.

32. First, I note the reports by health professionals post-accident (OCF-18s by physiotherapist S. Pearson and by Drs. Wilderman and Porco) refer to sprains, strains, whiplash associated disorder, which squarely correspond to the Schedule’s definition of “minor injury” in section 3(1). While Dr. Wilderman mentions “fracture of rib”, I have not been provided with any other evidence about this condition or about its possible link to the October 2013 accident. Similarly, there is no supporting evidence about Dr. Porco’s reference to sleep disorder and nervousness to suggest that these conditions may be other than minor injuries. In addition, I note that in the OCF-18 Treatment and Assessment Plan dated January 30, 2014, physiotherapist S. Pearson checked the box stating that the applicant’s injuries were predominantly minor as referred in the MIG.

33. I also rely on Dr. Shemtov’s March 2014 assessment. He mentioned in his report that the applicant reported intermittent pain in his shoulders and that this was aggravated by lifting objects. However, he noted there were no diagnostic studies such as an MRI or CT scans to indicate a “significant accident-related pathology”. He concluded that the applicant’s injuries were predominantly minor in nature and I find that his report is reliable and that he provided a clear rational to support his conclusion.

34. Second, regarding the issue of radiculopathy, I note that this condition is mentioned by S. Pearson in a number of his reports (for example an OCF-18 dated January 30, 2014). However, radiculopathy is not mentioned in Dr. Wilderman’s OCF-18 (February 1, 2016) nor is it mentioned in Dr. Porco’s OCF-18 (November 2. 2016). In addition, as noted in Dr. Shemtov’s report, during the assessment in March 2014, the applicant specifically denied experiencing radiculopathy of upper and lower extremities and it is significant to note that Dr. Shemtov is the only health practitioner who conducted a neurological examination of the applicant in relation to the car accident. Finally, while Drs. Huang and Safieh mention radiculopathy, they do so only in reference to S. Pearson’s reports and I give little weight to their report.

35. Third, regarding the submission about the chronic pain and the application of Arruda, I do not find the applicant’s argument clear or persuasive. The suggestion appears to be that the applicant should be out of the MIG because of his chronic pain. However, I note that, contrary to the facts in Arruda, in the present case there is no diagnosis of chronic pain. Indeed, in the Additional Comments section, at the end of the OCF-18 form, Dr. Wilderman writes that the purpose of the chronic pain assessment will be to establish the current diagnosis. As I have concluded that the applicant was within the MIG, he is not entitled to the cost of this examination.

Was there a pre-existing medical condition?

36. In order to successfully invoke the “pre-existing medical condition exception” to the requirement that minor injuries be treated in the MIG, the applicant must show compelling evidence that a) there was a pre-existing medical condition, b) it was documented by a health practitioner before the accident and c) the condition will prevent maximal recovery from the minor injury if the person is limited to $3,500.

37. The applicant submits that there were two pre-existing medical conditions: a) back problems related to a prior 2011 accident, and b) heart problems (which led to triple bypass surgery in January 2015).

38. First, in relation to the back problems, I note that the only pre-accident medical records included in the applicant’s submissions are those of his family physician, Dr. Danial. Although these records are not very legible, there appears to be one reference to “backache” in Dr. Danial’s patient chart – during a visit on February 12, 2009. I note that in their January 2017 paper review Drs. Huang and Paper conclude that there was a pre-existing condition namely “low back pain and degenerative changes. They rely in part on the clinical notes and records of Dr. Alkarim Damji, MD of John Garland Medical Clinic who apparently made an entry on February 1, 2013 of “back pain”. The applicant did not provide these records as part of his submissions. However, I find that the mere mention of the words “backache” or “back pain” either in Dr. Danial’s notes or, apparently, in Dr. Damji notes, does not amount to compelling evidence of a pre-existing medical condition.

39. Second, in relation to the heart condition, the applicant has submitted extensive medical and hospital files documenting the various heart related ailments he suffered, especially since the fall of 2014. For example, the applicant points to an August 7, 2014 letter by Dr. K. Melvin referring the applicant for elective cardiac catheterization.

40. Clearly, the applicant has suffered from cardiac problems since the date of the accident. However, to meet his burden of proof regarding the section 18(2) pre-existing condition limit, the applicant must prove on the balance of probabilities that these problems existed and were documented before the accident and now prevent him from achieving maximal recovery from the minor injuries to his neck, shoulders and back. Although there are indices that before the accident the applicant suffered from what are often precursors of heart disease (high cholesterol, hypertension etc.), I have reviewed the medical records in detail and could not find any medical evidence or even references stating that the applicant’s pre-accident symptoms or conditions prevented him from achieving maximal recovery from his minor injuries post-accident..

41. Regarding both conditions, the applicant relies on the November 2016 OCF-3 and OFC-18 by chiropractor P. Porco where reference is made to three pre-existing conditions namely hypertension, high cholesterol and previous motor vehicle accident in 2011, apparently all preventing maximal recovery under the MIG. I note that Dr. Porco does not explain when and by whom the conditions were documented pre-accident nor does she provide compelling evidence that these conditions would prevent recovery within the MIG.

42. In addition, the applicant provided the decoded OHIP summary for the August 31, 2009 to August 31, 2016 period. The applicant has not made any specific submissions on the summary except to state briefly that “medical professionals have indicated that the applicant had a list of more than 10-pre-existing medical issues”. In these circumstances, I am not prepared to draw a conclusion that any pre-existing conditions which the applicant may have had would prevent him from achieving maximal recovery from his minor injury under the MIG.

43. As a final note, I refer to Dr. Shemtov’s assessment and report of March 2014. He concluded that there were no documented existing conditions to prevent maximal recovery. I assign greater weight to the findings of Dr. Shemtov compared to the applicant’s other assessors. He is the only practitioner who conducted a neurological assessment. He considered a number of pre-accident documents and reports and the applicant’s self-report that he was in “relatively good condition” and denial of suffering from other ailments such as respiratory and chronic illnesses.

44. In conclusion, I find that the applicant did not establish on the balance of probabilities that there was compelling evidence pointing to a pre-existing back or heart problem that would prevent the applicant from recovering if he stays within the MIG. Consequently, the applicant is not entitled to the amount he claimed for a prescription drug ($123.40), nor is he entitled to the cost of the examination benefit ($2,259.78).

C. Additional Issue: Special Award pursuant to Regulation 664, section 10

45. The issue of special award was not identified as an issue in dispute at the Case Conference. The applicant raised the matter at the end of its written submissions in a rather indirect way. The respondent did not provide any submissions on the topic.

46. Section 10 of Regulation 664 under Ontario’s Insurance Act states that when an insurer unreasonably withholds or delays payments, the Licence Appeal Tribunal may award a lump sum of up to 50 per cent of the amount otherwise payable to the insured, plus interest on all amounts. I would not normally have entertained this submission as it was not raised at the Case Conference. However, I will note that the issue is moot as I have determined in these reasons that nothing is payable to the applicant.

Conclusion

47. Based on the reasons given above, I find that:

a) the applicant is not entitled to a non-earner benefit as he did not sustain an impairment resulting in a complete inability to carry on a normal life as a result of the accident. There no evidence of an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident;

b) as a result of the accident, the applicant suffered an impairment that is predominantly a minor injury, and there is no compelling evidence that he has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent him from achieving maximal recovery from the minor injury. The applicant is therefore entitled to treatment in accordance with the MIG to a maximum of $3,500 less amounts paid and any amounts the insurer is entitled to deduct under the Schedule;

c) consequently, given my decision on the MIG issue, the applicant is not entitled to the amount he claimed for a prescription drug, nor is he entitled to the cost of the examination benefit.

Released: June 5, 2017

Louise Bélanger-Hardy,

Adjudicator

Footnotes

1. 1Insurance Act, Regulation 34/10.
2. 2The case conference report noted the following issue but I did not receive any submission on the matter and have not addressed it in this decision: Did the applicant sustain an impairment within the meaning of the Schedule as a result of the accident?
3. 32009 ONCA 391 at para. 50.
4. 4Activities of Daily Life
5. 5See Superintendent’s Guideline No. 01/14. The Guideline goes on to state: Only in extremely limited instances where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition will prevent a person from achieving maximal recovery from the minor injury for the reasons described above is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline
6. 6Arruda v Western FSCO A13-003926 decision by Arbitrator Shapiro dated July 7, 2015.