T.W. v. Unifund Claims Inc., 2017 CanLII 77341

Licence Appeal Tribunal

Date: 2017-11-08

Tribunal File Number: 17-001129/AABS

Case Name: 17-001129 v Unifund Claims Inc.

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

Between:

Applicant

Applicant

and

Unifund Claims Inc.

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Olga Poznyakova, Paralegal

For the Respondent: Matus Averbuch, Counsel

HEARD IN WRITING: July 25, 2017

OVERVIEW

1T.W. (“the applicant”) was involved in a motor vehicle accident (“the accident”) on September 21, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

ISSUES IN DISPUTE

3The issues to be decided are:

1. Are the injuries sustained by the applicant predominately minor as defined by section 3(1) of the Schedule?

2. Is the applicant entitled to receive a medical benefit in the amount of $2,512.00 for a physiotherapy treatment, recommended by Toronto Health Care in a treatment plan dated October 19, 2015 and denied by the respondent on October 21, 2015?

3. Is the applicant entitled to receive a medical benefit in the amount of $1,311.20 for a physiotherapy treatment, recommended by Toronto Health Care in a treatment plan dated December 29, 2015 and denied by the respondent on December 29, 2015?

4. Is the applicant entitled to receive a medical benefit in the amount of $2,669.04 for a psychological treatment, recommended by Alliance Diagnostic and Treatment Inc. in a treatment plan submitted on March 22, 2016 and denied by the respondent on March 23, 2016?

5. Is the applicant entitled to payment for the cost of examinations in the amount of $1,979.84 for a psychological assessment, recommended by Alliance Diagnostic and Treatment Inc. in a treatment plan dated January 14, 2016 and denied by the respondent on January 15, 2016?

6. Is the applicant entitled to payment for the cost of examinations in the amount of $1,297.79 for a functional ability assessment, recommended by Alliance Diagnostic and Treatment Inc. in a treatment plan dated November 17, 2016 and denied by the respondent on November 17, 2016?

7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6I find that the applicant’s injuries are predominantly minor as defined by the Schedule and fall within the Minor Injury Guideline² (“the MIG”) because:

(i) They fit the definition of minor injury prescribed by the Schedule, and

(ii) there is no compelling evidence of a pre-existing medical condition that would remove the applicant from the MIG.

7My finding with respect to the applicant’s injuries and classification of those injuries within the MIG mean that he is not entitled to payment of the disputed benefits set out in his application.

8As I have denied the applicant’s claims, no interest is payable to him by the respondent.

ANALYSIS and REASONS

Issue 1 – MIG Determination

9The respondent argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore fall within the MIG. The applicant’s position is exactly the opposite.

10If the respondent’s position is correct, then the applicant is subject to the $3,500.00 limit on benefits prescribed by s. 18(1) of the Schedule and, in turn, any determination of whether the claimed benefits are reasonable and necessary will be unnecessary because the applicant has not argued that any portion of the $3,500.00 maximum benefit remains available for payment if he is in the MIG.

11Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae to such an injury.”³

The MIG and Physical Injuries

12The applicant’s physical injuries are consistently reported by all of the medical experts as strains and sprains of the shoulder, lumbar spine and knee, and headaches. The applicant does not provide any diagnosis of chronic pain syndrome nor does he address whether or not his headaches are clinically associated sequelae to the aforementioned injuries.

13I find that the applicant’s injuries fall predominately within the definition of “minor injury” noted above at paragraph 11.

14The applicant’s personal injury history includes a pre-accident workplace injury he describes as an “upper-back tear” (in 2006) and a gunshot wound to the chest (2008). X-rays have revealed a minor abnormality in spine curvature (“lordosis”) and medical reports mention a minimal enlargement of the heart. He contends that the respondent’s medical experts failed to consider these as pre-existing medical conditions and that, as a result, he should be excluded from coverage by the MIG.

15The MIG does permit an applicant with predominately minor injuries to be removed from its coverage if he has a medically documented pre-existing condition, and compelling evidence from a health practitioner that will prevent him from achieving maximal recovery from those injuries if he is subject to the $3,500 cap on treatment costs.⁴

16The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.

17The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made “in extremely limited circumstances” and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is “inconsistent with the intent of the Schedule and the MIG”. It requires compelling evidence to be provided using the Treatment and Assessment Plan (“OCF-18”) with attached medical documentation, if any, prepared by a health practitioner.

17It is against this strict standard of interpretation that I find that the applicant has failed to prove his contention that he had pre-existing conditions that would take him outside of the MIG. This is because:

(i) The applicant’s submissions do not speak to how his pre-accident injuries meet the compelling evidence test: his one reference to “compelling evidence” was made to the necessity of treatment.

(ii) I reviewed the OCF-18s submitted by the applicant and found that while serious pre-accident injuries were noted, no explanation was offered in any of them of how or why those injuries would generate a barrier to maximal recovery with treatment confined to the MIG limits.

(iii) A notation in one OCF-18 from Dr. Domenic Minella, chiropractor, about pre-existing conditions is simply an assertion with no explanation and therefore not “compelling” as evidence.

The MIG and Psychological Impairments

18The applicant argues that he has psychological impairments that remove him from the MIG. I agree that psychological impairments, if established, fall outside the MIG, because “minor injuries” as defined in s. 3(1) of the Schedule simply do not include psychological impairments.⁵

19As a result of the foregoing, I must determine whether or not the applicant sustained psychological injuries as the result of the accident.

20The applicant relies primarily on a psychological report by Dr. Jon Mills, psychologist, dated February 10, 2016 to establish his psychological injuries. Dr. Mills’ findings and diagnoses were consistent with an earlier report cited by the applicant, from Dr. Ernest Light, psychologist, dated December 18, 2015.

21Dr. Mills diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood. He also reported driver anxiety and sleep disturbances. He recommends eight sessions of psychotherapy and other treatment steps.

22The respondent relies on an insurer’s examination (IE) report by Dr. Marc Mandel, psychologist, dated February 4, 2016, with an addendum report dated March 22, 2016. Dr. Mandel’s examination of the applicant consisted of a clinical interview, clinical observation and standardized psychological testing including a Personality Assessment Inventory, Multidimensional Pain Inventory and Structured Inventory of Malingered Symptoms. In his addendum, Dr. Mandel also reviewed the findings and test results from Dr. Mill’s February 10 assessment, and expressly addressed them.

24In his report and addendum, Dr. Mandel states that he found:

(i) no objective evidence to support the diagnosis made by Dr. Mills;

(ii) minimal Beck Depression and Beck Anxiety test scores reported by Dr. Mills that do not support diagnoses of clinical depression or anxiety; and

(iii) no consistent evidence of psychopathology that would indicate a need for further intervention.

25The applicant rebuts the reliability of Dr. Mandel’s conclusions on these grounds:

(i) Dr. Mandel did not review the applicant’s psychological OCF-18s, which included “additional comments” providing “compelling evidence” to justify a psychological assessment proposal.

(ii) Dr. Mandel did not provide a specific opinion on whether the disputed OCF-18s were reasonable and necessary.

(iii) Dr. Mandel failed to retain or provide clinical notes and records for the February 4, 2017 interviews.

(iv) There are inconsistencies between Dr. Mandel’s observations and conclusions and those reached by a range of medical practitioners including Dr. Mills.

26I find that the applicant’s rebuttal fails to refute Dr. Mandel’s report because:

(i) The applicant provides no evidence to show why Dr. Mandel could not reach an appropriate and accurate conclusion based on his own observations, tests and interview, accompanied by a review of Dr. Mill’s most recent report.

(ii) Dr. Mandel should have provided a specific, express opinion on whether the disputed treatment and assessment plans were reasonable and necessary. However, I find that the contents of Dr. Mandel’s report lead to an unavoidable inference that he found the proposed treatment and assessment plans to be unnecessary. I find that it would be unreasonable to determine that the respondent was disentitled to draw that clear inference from Dr. Mandel’s findings.

(iii) The applicant does not explain how the failure by Dr. Mandel to “retain or provide” clinical notes and records for the February 4, 2016 interviews might impugn the integrity or validity of his report or why any adverse inference should be drawn from this point. I note that the applicant did not obtain from the Tribunal an Order for production of Dr. Mandel’s clinical notes and records.

(iv) The bald assertion that the inconsistencies between Dr. Mandel’s observations and conclusions and those reached by other medical experts weaken the validity of his report is unsupported by argument.

27The psychological reports for both parties rely heavily on honest, frank and forthright self-reporting by the applicant in both clinical interviews and tests. Dr. Mandel notes that in his examination, the applicant’s interview responses were consistent with diagnostic test results.

28In the IE interview with Dr. Mandel, the applicant indicated that, at the time of the examination:

(i) He did not believe that he required any psychological intervention in relation to the accident.

(ii) He was experiencing no physiological reactivity associated with being in a vehicle and was not fearful or avoidant.

(iii) He felt “normal” and did not experience low mood or persistent sadness, nightmares or flashbacks about the accident, and no increase in irritability, restlessness or agitation.

(iv) He was experiencing some stress related to his personal finances, but that had always been the case.

29I find that statements by the applicant to Dr. Mandel undermine the persuasive value of his self-reporting in other examinations, including Dr. Mills’ assessment, in effect by contradicting them.

30The applicant does not explain the discrepancies in his statements to different medical experts. He attempts to shift the onus of explaining these inconsistencies onto the respondent, implying that statements made in a series of assessments should, by sheer volume, outweigh statements made in an examination undertaken with the express purpose of assessing eligibility for benefits. This is unpersuasive.

31I find that the applicant has not met his onus to prove that he suffers, as a result of the accident, psychological injuries that would remove him from the MIG. On a balance of probabilities, I find that the evidence favours the respondent’s position on this issue.

32Although my finding in paragraph 17 makes the issue of pre-existing conditions moot, I did review the OCF-18s for psychological treatment and Dr. Mills’ report and found no evidence of pre-existing conditions that would affect psychological recovery.

INTEREST

34Section 51 of the Schedule prescribes that the insurer must pay interest on overdue payments to insured persons.

35The benefits claimed by the applicant are denied and, therefore, no interest on overdue payments is due.

CONCLUSION

36In considering the physical and psychological issues raised by the applicant, I find that with respect to the accident, his injuries are limited to those that fall within the MIG.

37The applicant’s claims for medical benefits and the cost of examinations are not payable, as the amounts claimed fall beyond the cap on benefits payable for predominately minor injuries imposed by s.18 of the Schedule.

38There is no interest due on overdue payments.

Footnotes

1. 1O.Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. issued pursuant to s. 268.3 (1.1) of the Insurance Act, R.S.O. 1990, c. I.8.
3. 3Detailed more fully in the Minor Injury Guideline, Superintendent’s Guideline 01/14, referenced above.
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.
5. 5I concur with other adjudicators who have concluded that psychological impairments are excluded from the MIG, forexample in DJ v Aviva, 2016 CanLII 93136 (ON LAT) para. 17.