I.A. v. Unifund Claims Inc., 2017 CanLII 77346

I.A. v. Unifund Claims Inc.

Date: 2017-11-09 Tribunal File Number: 17-000785/AABS Case Name: 17-000785 v Unifund Claims Inc

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:

I.A.

Applicant

and

Unifund Claims Inc

Respondent

AMENDED DECISION

Adjudicator: Billeh Hamud

Appearances: For the Applicant: Rome Petricca, paralegal For the Respondent: Samantha Mason, counsel

Heard in writing: June 12, 2017

BACKGROUND:

1. The applicant was injured in an automobile accident on August 2, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUE:

3. Is the applicant beyond the limitation period for filing an application regarding a medical benefit claim for $2,850.00 for chiropractic services as set out in issue #2 below?

ISSUES IN DISPUTE

4. The following are the issues in dispute:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule subject to a treatment cap of $3,500.00 and to treatment within the Minor Injury Guideline (the “MIG”)?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,850.00 for chiropractic services, recommended by Cawthra Dundas Chiropractic Services in a treatment plan dated January 7, 2014, denied on July 24, 2014?

iii. Is the applicant entitled to receive medical benefits in the amounts of: a. $3,690 for chiropractic services, recommended by Spine Advanced Chiropractic Services in a treatment plan submitted September 23, 2016, denied September 29, 2016? b. $3,300 for chiropractic services, recommended by Spine Advanced Chiropractic Services in a treatment plan submitted October 14, 2016, denied on October 28, 2016?

iv. Is the applicant entitled to payments for the cost of examinations in the amount of $2,846.00 for a psychological assessment, recommended by Definitive Health Services in a treatment plan dated April 14, 2016, denied on April 22, 2016?

v. Is the applicant entitled to payments for the cost of examinations in the amount of $2,709.94 for a chronic pain assessment, recommended by Definitive Health Services in a treatment plan dated April 14, 2016, denied April 22, 2016?

vi. Is the applicant entitled to interest on overdue payments from the respondent?

RESULT:

5. I find on all of the evidence that the applicant is beyond the limitation period set out in the Schedule. Accordingly, issue (ii) is dismissed.

6. I find that the applicant’s injuries to be beyond the definition of “minor injury” as noted in the Schedule. In addition, I find that the applicant had a pre-existing condition from a previous accident in 2011 which would prevent the applicant from achieving maximal recovery within the MIG following his subsequent motor vehicle accident in 2013.

7. I find the applicant is entitled to receive medical benefits and payment for the cost of examinations as noted in issue (iii), (iv) and (v).

8. The applicant is also entitled to interest as noted in issue (vi), but only with respect to the chronic pain assessment and the psychological assessment.

ANALYSIS:

Preliminary Issue: Limitation Period

9. Section 56 of the Schedule states:

“An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed”

10. There is no dispute that the respondent denied the treatment plan in the amount of $2,850.00 for chiropractic services on July 24, 2014 and that notice to dispute the decision was provided to the applicant on the same day. However, the applicant submits that the limitation period should not apply because he filed an application for mediation with the Financial Services Commission of Ontario (FSCO) on March 15, 2016, two months before the statutory notice period ended, and that the file was “arbitrarily closed” by FSCO on May 27, 2016.

11. Under s.281.1(2)(b) of the Insurance Act, the applicant had the option of filing an application with FSCO within 90 days after receiving the FSCO mediator’s report.

12. While the applicant submits he filed an application for mediation with FSCO on March 15, 2016, I have been provided with no evidence that a mediator’s report was issued or any steps were taken to obtain an explanation from FSCO about why the file was closed. Furthermore, I agree with the respondent’s submissions that nothing prevented the applicant from filing his application with the Tribunal at any time after June 1, 2016 and before the expiry of the two year limitation period. I find the applicant’s explanation that he was waiting for medical documentation to be unpersuasive, since the applicant failed to explain why he waited for over two years to obtain the outstanding medical documents. I also find the applicant’s explanation attributing the delay to conducting settlement discussions to be similarly unpersuasive, since nothing prevented the applicant from filing the application and negotiating with the respondent at the same time.

13. This application was only filed at the Tribunal in February 2017, over nine months after FSCO’s notice was sent to the applicant on May 27, 2016 advising that his file was closed.

14. I find the delay to be excessive and no reasonable explanation has been provided by the applicant to waive the two year limitation period.

15. Accordingly, I find issue #2 is dismissed because it was disputed beyond the two-year limitation period pursuant to section 56 of the Schedule.

1) Are the applicant’s injuries predominately minor injuries as defined in the Schedule?

16. Under the Schedule, a “minor injury” means “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”.

17. Section 18(2) of the Schedule allows some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500.00 limit. Specifically, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG guideline limit.

18. The minor injury provisions in the Schedule are a limit on an insurer’s liability, not an exclusion from coverage. The onus of establishing entitlement beyond the limit rests with the applicant. The applicant must establish his entitlement to coverage beyond the $3,500 limit for minor injuries.

Injuries sustained by the applicant

19. I find the following evidence submitted by the applicant supports his position that his injuries fall outside the MIG.

20. On August 3, 2013, Dr. Mark Jagger, the applicant’s Chiropractor, determined that the applicant sustained the following injuries related to the applicant’s accident on the OCF-23 (Treatment Confirmation Form):

• Dislocation of acromioclavicular joint
• Sprain and strain of lumbar spine
• Sprain and strain of shoulder joint
• Sprain and strain of thoracic spine
• Whiplash associated disorder (WAD 3) with complaint of neck pain with neurological signs

21. On January 7, 2014, Dr. Jagger completed an OCF-18 (Treatment and Assessment Plan) and noted the same injuries as the August 3, 2013 assessment with the addition of “post-traumatic stress disorder” as an additional injury.

22. On July 10, 2014, the respondent’s examination reports by Dr. D. Mula, a family physician, and Dr. A. Chan, a psychologist, determined that the applicant’s injuries fell within the definition of a minor injury as defined in the MIG and is subject to the limit of $3,500.00. Dr. Mula noted that the applicant’s complaints related to the accident consisted of persistent pain in the neck, increased pain in his bilateral shoulders, and intermittent pain in his lower back. The applicant complained that these injuries were pre-existing injuries from a prior motor vehicle accident and that the accident in question aggravated those injuries.

23. Dr. Mula diagnosed the applicant with “myofascial strain of the neck, bilateral shoulders, lower back and bilateral sacroiliac joints, superimposed on pre-existing complaints at these areas originating in a November 2011 motor vehicle accident, based on the history obtained”. However, Dr. Mula concluded that the applicant’s impairment fell within the definition of a “minor injury”.

24. Dr. Chan noted that the applicant “continues to complain of intermittent pain in the neck/shoulders as well as his lower back, worse on the right side. He said his neck/shoulder disrupts his sleep and he is only able to obtain 4 to 5 hours of broken sleep per night. As a result, he said he is fatigued and often irritable”. Following the accident, the applicant stated he “developed an increasingly sore neck, shoulder and lower back pain as well as a bruise over his left shoulder from his seatbelt”. The applicant noted that “he reported resuming physical therapy with a chiropractor who had been treating him since his 2011 motor vehicle accident. [The applicant] said he continues to attend treatment one to two times per week, but believes his treatment benefits had been consumed”.

25. Dr. Chan also determined that the applicant’s subjective reports regarding symptoms and problems were consistent with the nature and intensity of the accident. Dr. Chan found that the applicant’s scores on the M-FAST test were low suggesting it is unlikely he has an over-endorsing style. Dr. Chan further determined that the applicant’s scores on the DASS-42 test were also consistent with his self-report. Dr. Chan then concluded the “overall reliability of the current assessment was judged to be good”.

26. I accept Dr. Chan’s assessment of the applicant’s pain. I also agree with Dr. Chan’s assessment that it was unlikely that the applicant had an over-endorsing style with respect to his injuries.

27. From January 2014 to April 2017, the applicant receives and continues to receive chiropractic treatment from Dr. Jagger. This treatment expense was incurred by the applicant.

28. On April 14, 2016, Dr. Fahimeh Aghamohseni, the applicant’s psychologist, determined that the applicant had the following injuries:

• Problems related to lifestyle
• Pain, not elsewhere classified
• Malaise and fatigue
• Other problems related to primary support group, including family circumstances
• State of emotional shock and stress, unspecified
• Unhappiness
• Problems related to life-management difficulty

29. Dr. Aghamohseni further noted that the applicant “tries to avoid being in vehicle more than necessary since the accident” and that “he reports severe pain in his whole back, neck and shoulders”. Dr. Aghamohseni also stated that “[the applicant] reports difficulty sleeping at night. He wakes up several times throughout the night and is unable to fall back asleep”.

30. Dr. Aghamohseni also noted that the applicant “verbally reported anxiety feelings and described significant in-vehicle issues including feeling very scared, nervous, and anxious about being in vehicle since the accident. [The applicant] described in-vehicle mannerisms that are supported by his verbal accounts. [The applicant] described a litany of in-vehicle behavioural, psychological and physiological anxiety issues”. As a result, Dr. Aghamohseni recommended that the applicant undergo a psychological assessment.

31. On April 14, 2016, Dr. Igor Wilderman, the applicant’s physician and chronic pain consultant, determined that the applicant “experiences pain with activities that involve extending, bending, lifting, and carrying. Static postures, sustained standing and walking, and other prolonged activity also aggravate his symptoms. [The applicant] find difficulty in performing housekeeping tasks and other activities of daily living”. Dr. Wilderman recommended that the applicant undergo a chronic pain assessment.

32. On July 24, 2016, the respondent advised the applicant that it was determined that his injuries fell within the definition of a minor injury and referred to the respondent’s reports from Dr. Mula and Dr. Chan dated July 10, 2014 as the reasons for the denial.

33. On September 27, 2016, Dr. Michael West, the applicant’s orthopedic surgeon, performed an orthopedic assessment on the applicant. In his report, Dr. West diagnosed the applicant with “chronic pain syndrome” as well as the following:

• Myofascial strain lumbosacral spine
• Myofascial strain cervical spine
• Post-traumatic cervicogenic headaches
• Post-traumatic insomnia
• Post-traumatic fatigue
• Post-traumatic anxiety and stress with depressive episodes. Further comment on this diagnosis is beyond the scope of my speciality and would be best addressed by a psychological or psychiatric evaluation

34. On p.9 of the report, Dr. West states that “[the applicant]’s symptoms of neck pain and stiffness and back pain and stiffness have been continuous since the accident of August 2, 2013. These symptoms have persisted and have been essentially unremitting for a period of over three years since the subject accident despite [The applicant] the following the recommended treatment program and having appropriate accommodations”.

35. On pg. 10 of the report, Dr. West states that “as a result of these injuries, in my opinion, [The applicant] suffers from a chronic pain syndrome”. Dr. West explains that “chronic pain syndrome often begins with acute pain such as that experienced initially by [the applicant] after the subject accident. Acute pain is often followed by prolonged pain impulses”.

Analysis

(i) Injuries are beyond the definition of “minor injury”

36. I find the applicant’s injuries to be beyond the definition of “minor injury” as defined in the Schedule. Specifically, I agree with Dr. West’s diagnosis that the applicant suffers from chronic pain syndrome, myofascial strain to lumbosacral spine, myofascial strain to cervical spine, post-traumatic cervicogenic headaches, post-traumatic insomnia, post-traumatic fatigue and that the applicant’s symptoms cannot be treated within the confines of the MIG. I find that Dr. West’s assessment of “post-traumatic anxiety and stress with depressive episodes” is outside his scope of practice as an Orthopedic Surgeon.

37. There is no doubt that the applicant was involved in a motor vehicle accident in 2011 and that following the 2013 accident the applicant frequently complained of neck, shoulder and lumbar pain. The applicant received treatment for that pain from his chiropractor on a bi-weekly basis and regularly complained of that pain from the date of the 2013 accident until the present. In fact, even the respondent’s physicians have admitted that the applicant complained of pain in his neck, shoulders and lower back.

38. I agree with Dr. West’s definition of chronic pain syndrome as defined in his report:

“A chronic pain syndrome is said to exist when symptoms have been present for many months, sometimes years after injury. The pain is constant and intrusive in nature. Chronic pain is a persistent state of pain whereby the cause of the pain cannot be removed completely. Chronic pain is pain that continues beyond the normal recovery period for the respective injuries sustained despite appropriate therapy and reasonable accommodations. It interferes with substantially all of the patient’s daily activities.”

39. These findings from Dr. West are consistent with the applicant’s persistent and documented complaints of pain to his neck, shoulder and lower back from the date of the accident to the Present. All of the physicians and specialists that assessed the applicant, including the respondent’s physicians, have noted that the applicant suffers from pain.

40. For these reasons, I find the applicant’s injuries to be beyond the definition of “minor injury” as defined by the Schedule.

(ii) Presence of a pre-existing medical condition

41. I have also determined that the applicant’s injuries suffered in his previous car accident in 2011 is a “pre-existing medical condition”.

42. I find the opinion of Dr. Jagger supports this view. Dr. Jagger also noted on the OCF-23 on August 2, 2013 that the applicant was involved in a previous car accident and that the present car accident was “far more severe” and “at much greater speed than the previous one thereby severely exacerbating symptoms”. Dr. Jagger states that “post traumatic pathology is now likely in the tissues” due to “multiple and more severe injuries substantiated in the most recent MVA”

43. Dr. Mula, however, disagreed with Dr. Jagger. In his report, Dr. Mula reviewed Dr. Jagger’s OCF-18 dated January 7, 2014 and stated that “this documented pre-existing condition in the form of myofascial pains originating in a November 2011 motor vehicle accident would not prevent the claimant from achieving maximal recovery from the accident-related impairment within the confines of the MIG”. (emphasis added)

44. I note that Dr. Mula’s report was dated in 2014. However, the applicant’s recent medical evidence from September 2016 confirms that the applicant still suffers from pain from his neck, shoulders and lower back that pre-existed before the car accident in 2013. I find the recent medical evidence in 2016 confirms that the applicant’s pain has persisted well after the Dr. Mula’s examination of the applicant in 2014.

45. Nevertheless, the respondent submits that even if the motor vehicle accident of 2011 is found to have contributed to a “pre-existing condition”, the applicant has failed to adduce evidence to demonstrate that this “pre-existing condition” prevented him from achieving maximal recovery within the MIG. The respondent relies on the Tribunal’s decision in M.M. v Wawanesa Mutual Insurance Company, 2016 CanLII 93132.

46. While I agree with the Tribunal’s reasoning in M.M, I find that the applicant has provided sufficient and compelling medical evidence of chronic pain originating in his previous motor vehicle accident in 2011 which would prevent him from achieving maximal recovery within the MIG following his subsequent motor vehicle accident in 2013.

47. Both the applicant and respondent’s physicians and specialists have consistently reported on the applicant’s pain with respect to his neck, shoulders, and lower back. Similarly, the applicant consistently reported to his specialists and the respondent’s physicians that the 2013 accident worsened his symptoms following the 2011 accident. Specifically, the applicant reported to Dr. Mula, one of the respondent’s physicians, that he had “a pre-existing neck pain that was aggravated by the motor vehicle accident of August 2, 2013”, “increased pain in his bilateral shoulders, which he had from his first motor vehicle accident, and was aggravated by the motor vehicle accident in question”, “lower back pain from his first motor vehicle accident, and that it was increased approximately 30% following the motor vehicle accident in question”.

48. The applicant’s reports from Dr. Aghamohseni, Dr. Jagger and Dr. West also confirm the applicant’s evidence that he was experiencing pain from his 2011 accident and experienced increased pain following the accident in 2013.

49. Based on the evidence before me, I find that the applicant has satisfied his onus to show that there is compelling evidence that he cannot achieve maximal recovery within the MIG because of a pre-existing medical condition.

Are the treatment plans submitted reasonable and necessary?

50. I must now determine whether the applicant’s treatment plans are reasonable and necessary.

51. The applicant maintains that the treatment plans submitted are reasonable and necessary. I note that the applicant has incurred this expense despite the respondent’s refusal to approve the treatment plans.

52. The respondent denies that the treatment plans and assessments are reasonable and necessary and submits that the applicant did not meet his burden of proof in this regard. Furthermore, the respondent maintains that more than two years elapsed from the date of the completion of the OFC-18 proposing chiropractic treatment to the date of their submission calls into question their reasonableness and necessity. The respondent also states that the applicant returned to work and is performing the full range of his work duties. Lastly, the respondent calls into question Dr. Jagger’s treatment and whether further treatment is reasonable and necessary.

53. Given my findings regarding the applicant’s medical evidence, I disagree with the respondent’s claim that the applicant did not meet his burden of proof. While I am concerned about the two year gap in between the completion of the OFC-18 and its submission to the respondent, the evidence demonstrates that the applicant continued with his treatment with Dr. Jagger and incurred this expense despite the respondent’s denials throughout this two year period. In addition, Dr. Jagger’s stated in his progress report dated September 8, 2016 that the applicant’s injuries were extensive and the “onset of pain was immediate following the accident”.

54. With respect to the applicant’s employment, Dr. Jagger’s progress report dated September 8, 2016, clearly states that he continues to treat the applicant on a basis of 1-2 times per week to manage his pain and help him function to complete his employment duties and ADLs. Furthermore, Dr. West confirms that although the applicant was able to return to work, he is on modified duties and restrictions and complains of constant pain. Dr. West also notes that the applicant is unable to perform tasks that involve a lot of bending and lifting and requires assistance. Therefore, I disagree with the respondent’s claim that the applicant returned to work and is performing his full range of pre-accident duties.

(i) Treatment Plan dated January 1, 2014, submitted on September 23, 2016, for chiropractic services

55. I find the treatment plan submitted by Spine Advanced Chiropractic Services on September 23, 2016 to be reasonable and necessary. Specifically, the OCF-18 by Dr. Jagger notes pain reduction, increase in strength and increase in range of motion as goals with respect to the treatment plan. I find that the treatment of “acupuncture, multiple body sites” to be reasonable and necessary with respect to the applicant’s reported injuries. The cost is reasonable and not excessive.

(ii) Treatment Plan dated April 4, 2014 submitted on October 14, 2016, for chiropractic services

56. I also note that the second treatment plan submitted by Spine Advanced Chiropractic Services on October 14, 2016 is reasonable and necessary. I find that Dr. Jagger’s proposed treatment of “manipulation, multiple body sites” to be a reasonable and necessary treatment for an individual with pain in the neck, shoulder and lower back. I find the treatment goals of pain reduction and increase in strength to be consistent with the proposed treatment and with the applicant’s evidence about how this treatment helps him function at work and in his daily activities Dr. Jagger also acknowledges that the applicant’s severe injuries at multiple locations will be a barrier to recovery but maintains that “a dynamic treatment plan” and “changing of treatment stimulation will force the body to continually adapt” creating a healing effect. The cost is reasonable and not excessive.

Cost of Examinations

(i) Psychological Assessment

57. The applicant claims entitlement to $2,486.00 for a psychological assessment. I agree with Dr. Aghamohseni’s conclusions that “psychological factors exert an important influence on recovery following physical injury” and that “pain beliefs and attitudes have been linked with many aspects of pain experience, including pain intensity, emotional distress, pain-related disability and pain behaviour”.

58. Dr. Aghamohseni identified the goal of the treatment plan is to achieve pain reduction and return to pre-accident level psychological functioning. The treatment plan states that progress will be determined based on “re-assessment and clinical interview, clinical testing, client feedback, attendance and level of motivation and compliance with treatment, professional observations”. I find the cost to be reasonable and not excessive.

59. As a result, Dr. Aghamohseni’s recommendation for a psychological assessment is consistent with the applicant’s chronic pain which has persisted for over three years following his second car accident. Accordingly, I find the recommendation of a psychological assessment to be reasonable and necessary.

60. I find the applicant is entitled to the cost of examinations for a psychological assessment.

(ii) Chronic Pain Assessment

61. The applicant claims entitlement to $2,709.74 for a chronic pain assessment. On April 14, 2016, Dr. Wilderman stated that given the “incomplete resolution of the applicant’s [pain] symptoms, the time that has passed since the accident, and the patient’s limitations, an assessment with a chronic pain specialist is beneficial in determining the exact nature of [the applicant’s] syndrome.”

62. Dr. Wilderman noted that the treatment goal is pain reduction and return to the applicant’s pre-accident lifestyle. Furthermore, Dr. Wilderman states in the OCF-18 that the chronic pain assessment will be a comprehensive assessment to accurately describe pain areas and other symptoms. Dr. Wilderman also explains that the assessment will 1) determine if there are any abnormalities on exam to determine the relationship of symptoms and signs to the accident, 2) determine a provisional diagnosis for each symptoms, 3) provide prognostication and outline a management plan to be implemented by the patient, their primary care physician and other professionals.

63. As I determined above, the applicant’s pain in his shoulder, neck and lower back have persisted since his first accident in 2011 and after his second accident in 2013. Accordingly, I find that a chronic pain assessment is reasonable and necessary to determine the nature of the applicant’s pain following the accident and possible treatments. The cost is also not excessive.

64. I find the applicant is entitled to the cost of examinations for a chronic pain assessment.

Interest

65. I find the applicant is entitled to interest on the chronic pain assessment and psychological assessment only in accordance with the Schedule.

Released: December 6, 2017

Billeh Hamud, Adjudicator