C. W. v. Unifund Assurance Company, 2017 CanLII 56670

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

TRIBUNAL D’APPEL EN MATIÈRE DE PERMIS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-08-04

Tribunal File Number: 16-003336/AABS

Case Name: 16-003336 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:

C. W.

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Blaine Baker.

APPEARANCES:

For the Applicant: C. W. (applicant) and Gavin Cosgrove (counsel for the applicant).

For the Respondent: Unifund Assurance Company (respondent), Claudia Batista (counsel for the respondent), and Ken Yip (counsel for the respondent).

HEARD: Written Hearing: May 29, 2017.

REASONS FOR DECISION AND ORDER

1This is an Application to the Licence Appeal Tribunal (the “Tribunal”) in respect of an insured person’s entitlement to statutory accident benefits.

FACTS

2Forty-one year-old C. W. (the applicant) was injured in a “T-bone” automobile accident on February 7, 2014 in Kingston, Ontario, and sought benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule).

3The applicant requested a “job demands analysis” (an occupational therapy assessment and treatment plan) that was submitted on July 28, 2016. It was denied in part by Unifund Assurance Company (the respondent) on August 23, 2016. That denial was based on the respondent’s determination that the applicant had suffered predominantly minor injuries, whose treatment fell within the “Minor Injury Guideline” (the “MIG”) as defined by section 3 of the Schedule.

4The applicant disagreed with the respondent’s decision, and submitted an application for dispute-resolution services to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the “Tribunal”).

5The parties participated in a Tribunal Case Conference and two resumptions of it, but were unable to resolve the issues in dispute.

ISSUES TO BE DECIDED

6The issues in dispute identified by the parties in their submissions and to be decided are:

i.) Did the applicant suffer predominantly minor injuries, whose treatment falls within the MIG.

ii.) Is the applicant entitled to a medical benefit in the amount of $1,397.00 for a job demands analysis, less $694.49 of that amount, which the respondent approved as the remainder of the applicant’s MIG entitlement?

iii.) Is the applicant entitled to interest on overdue payment of benefits?

iv.) Is the applicant entitled to disbursements and costs on a solicitor and his own client basis he has incurred in this application?

RESULT

7Based on the totality of the evidence before me, I find that:

i.) The applicant’s injuries were not predominately minor ones as defined by the Schedule.

ii.) The applicant is entitled to receive additional assessment and treatment by Modern OT to a maximum value of $702.51, as specified in an assessment and treatment plan submitted to the respondent on July 28, 2016.

iii.) The applicant is entitled to interest on that overdue payment of benefits.

iv.) The applicant is not entitled to disbursements or costs he incurred in this application, on a solicitor and his own client basis or otherwise.

ANALYSIS

8As this was a written hearing, the only evidence before me was in the form of documentary material. I have considered carefully all of the documents that were submitted by the parties.

9The MIG establishes a framework for the treatment of minor injuries suffered in automobile collisions. To understand the analysis in respect of the minor injury issue that has arisen in this application, it will therefore be necessary to define several terms. “Minor injury” is defined by section 3 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 also defined by section 3 of the Schedule, and are generally referred to as “soft tissue injuries”.

10Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for soft tissue injuries to $3,500.00, minus any amounts paid in respect of an insured person under the MIG.

11Section 18(2) of the Schedule makes provision for injured persons who have pre- existing medical conditions to receive treatment in excess of the MIG cap. To gain access to those increased benefits, an injured person’s healthcare provider must supply evidence that the person in issue has a pre-existing medical condition, documented prior to the accident, which will prevent that person from achieving maximal recovery if benefits are limited by the MIG cap.

12The applicant relied on a disability certificate prepared by Dr. Andrew Gatterall of Centric Health, Physiology, and Wellness on March 24, 2014, physiatrist’s reports prepared by Dr. Gail Delany on May 8, 2015 and March 11, 2017, and on a report prepared by Occupational Therapist Erika Marosi of Modern OT on July 28, 2016. Dr. Delany diagnosed a labral (SLAP) tear in the applicant’s left shoulder that was, for her, more than a MIG soft tissue injury, and she emphasized a C7 (lower back) nerve root condition (originally diagnosed in 1999) that she concluded would prevent the applicant from achieving maximum recovery if he were limited to treatment authorized under the MIG. Occupational Therapist Marosi also concluded that the applicant’s impairment was more than a MIG injury.

13For his part, the applicant scaled down post-accident self-employment in his plumbing business from six days to four days a week, and hired a helper to assist him with strenuous work.

14It had been two years since the accident submitted the treatment plan in issue, and the respondent had treated the applicant’s file as “inactive”. The respondent had not denied anything prior to receiving this treatment plan, so had not had to determine whether the applicant was in or out of the MIG. However, that characterization of events downplays Dr. Delany’s letter of May 8, 2015 about the applicant’s back and shoulder injuries, and the ongoing treatment that the respondent was funding for the applicant at Centric Health, Physiology, and Wellness during the winter of 2015-16.

Moreover, it contrasts with Dr. Delany’s updated diagnosis of March 11, 2017.

15The respondent also relied on opinions provided to it by orthopedic surgeon John Harrington on February 14, 2017 and April 11, 2017, to the effect that the applicant’s injuries were soft tissue in nature and therefore minor. But those medical opinions by Dr. Harrington did not address in sufficient detail the applicant’s left shoulder injuries or his pre-existing back injuries that were emphasized by Dr. Delany (and Dr. Abraham).

16Based on the evidence before me, and taking account of Ontario’s 2015 Divisional Court decision in Scarlett v. Bellair Insurance, 2015 OSNC 3635 that deals with onuses and burdens of proof in these applications (cited by the respondent), I find that the applicant has shown that he suffers from more than minor injuries as defined by the MIG. I find that he has a pre-existing medical condition, documented prior to the accident, which will prevent him from achieving maximal recovery under the MIG. He is therefore entitled to treatment valued beyond the MIG dollar limit, subject to the statutory prescription period that has now run in this case.

CONCLUSION

17Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Unifund Assurance Company to pay Modern OT for an additional $702.51 worth

of assessment and treatment for C. W., in accordance with a job demands analysis prepared by Modern OT on July 28, 2016.

18The Tribunal also directs Unifund Assurance Company to pay C. W. interest on that overdue payment of benefits.

COSTS

19The applicant requested disbursements, as well as costs on a solicitor and his own client basis, in his submissions. He did not, however, set out detailed reasons for those requests. The provision of that kind of justification is necessary under the Licence Appeal Tribunal Rules of Practice and Procedure (the “LAT Rules”), since costs do not automatically follow an event in respect of AABS applications. Nor did the applicant identify elements of the respondent’s behavior that were “unreasonable”, “frivolous”, “vexatious”, or “in bad faith” such that they might lead to a special award for costs under Rule 19.4 of the LAT Rules.

20Hence, no costs will be awarded against the respondent.