17-004579 v Unifund Assurance Company, 2018 CanLII 112105

Date: 2018-08-24

Tribunal File Number: 17-004579/AABS

Case Name: 17-004579 v Unifund Assurance Company

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 Assurance Company

Respondent

DECISION

ADJUDICATOR: Avvy Go

APPEARANCES:

For the Applicant: Maria Mikhailitchenko, Counsel

For the Respondent: Stefania C. Sdao, Counsel

Heard in Writing: May 14, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in a motor vehicle accident on October 24, 2015. She was a front seat passenger in a vehicle driven by her husband. Their vehicle was stopped at a red light when it was struck by another vehicle from behind. Police and ambulance attended at the scene. Her husband’s vehicle was towed.

2The applicant went to see her family physician the following day. She was not sent to take any x-rays or MRIs. She was advised to take painkillers to manage her pain symptoms. The applicant participated in physiotherapy and massage therapy following her accident.

3At the time of the accident, the applicant was working as a part-time driver. She has three daughters who were all under the age of 18 at the time of the accident. The applicant did not take time off from work, but went on modified work for an unspecified period of time.¹ She has since resumed working at the same company on a full-time basis.²

4The applicant applied to the respondent, Unifund Assurance Company, for a number of benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010³ (“Schedule”). The respondent denied these benefits.

5A case conference was held in November, 2017 to determine the issues in dispute and to address the disclosure of documents by the parties. The Tribunal ordered the applicant to produce certain documents by January 10, 2018 and set the matter down for a hearing in writing for March 21, 2018.

6In February 2018, the respondent brought a motion seeking an order to exclude certain documents submitted by the applicant on February 5, 2018, with costs. On consent, the parties agreed to include the new evidence and extend the deadline for the respondent’s submission to April 30, 2018 and to reschedule the written hearing to May 14, 2018.

7By email dated May 4, 2018 at 9:39 p.m., the applicant produced the clinical notes and records (CNR) of the applicant’s family physician, Dr. Harject Dhanoa.

ISSUES

8The respondent raised a preliminary issue to exclude the CNR of Dr. Dhanoa as evidence because it was submitted late.

9The substantive issues in dispute are:

(a) Are the applicant’s injuries predominantly minor injuries as defined in the Schedule such that treatment of them falls within the Minor Injury Guideline (MIG)?

(b) Is the applicant entitled to monthly attendant care benefits in the amount of $400.00 for the period of November 12, 2015 to November 12, 2017?

(c) Is the applicant entitled to receive a medical benefit of $1,614.37 for other assistive devices, recommended by Alliance Treatment and Diagnostics Inc. in a treatment plan dated January 11, 2016, denied by the respondent on March 15, 2016?

(d) Is the applicant entitled to receive a medical benefit of $3,558.72 for psychological services recommended by Alliance Treatment and Diagnostics Inc. in a treatment plan dated January 7, 2016, denied by the respondent on March 15, 2016?

(e) Is the applicant entitled to payment for the cost of a total body examination in the amount of $1,297.79 recommended by Alliance Treatment and Diagnostics Inc. in a treatment plan submitted on January 7, 2016⁴, denied by the respondent on February 18, 2016?

(f) Is the applicant entitled to payment for the cost of a mental health assessment examination in the amount of $1,964.71 recommended by Alliance Treatment and Diagnostics Inc. in a treatment plan submitted on December 7, 2015, denied by the respondent on January 4, 2016?

(g) Is the applicant entitled to payment for the cost of a total body examination in the amount of $1,297.79 recommended by Alliance Treatment and Diagnostics Inc. in a treatment plan submitted on January 11, 2016, denied by the respondent on March 15, 2016?

(h) Is the applicant entitled to payment for the cost of an attendant care assessment examination in the amount of $1,354.46 recommended by Alliance Treatment and Diagnostics Inc. in a treatment plan submitted on November 27, 2015, denied by the respondent on March 15, 2016?

(i) Is the applicant entitled to payment for the cost of an attendant care assessment examination in the amount of $1,297.17 recommended by Alliance Treatment and Diagnostics Inc. in a treatment plan submitted on January 11, 2016, denied by the respondent on March 15, 2016?

(j) Is the applicant entitled to payment for the cost of a housekeeping assessment examination in the amount of $1,410.13 recommended by Alliance Treatment and Diagnostics Inc. in a treatment plan submitted on January 7, 2016, denied by the respondent on March 15, 2016?

(k) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

10For the reasons set out below, I allow the applicant to submit as evidence the CNR of Dr. Dhanoa. Further, I find the applicant’s injuries fall within the Minor Injury Guideline. As such I find that the applicant is not entitled to the medical benefits claimed in paragraphs 9(a) through (i), above, and that no interest is payable. Finally, I order the applicant to pay costs of $200 to the respondent.

ANALYSIS

Preliminary Issue: Should the CNR of Dr. Dhanoa be excluded?

11The respondent asked the Tribunal to exclude the CNR of Dr. Dhanoa as the applicant failed to comply with the Tribunal’s Rules concerning the timeline for filing evidence. The respondent cited two provisions of the Rules. First, section 9.3 requires that all documents be served at least 10 days before the hearing. Second, pursuant to section 6.2 of the Tribunal Rules, where emails are sent after 5:00 p.m., service is deemed to occur the next day that is not a holiday. In this case, the hearing was scheduled for May 14, 2018. The applicant’s counsel emailed Dr. Dhanoa’s CNR to the respondent on Friday, May 4, 2018 at 9:39 p.m. Applying section 9.3 of the Rules, the CNR were therefore not served until Monday, May 7, 2018 and as such, were three days short of the 10 day requirement under section 9.3.

12The respondent also noted that they had requested the CNR well in advance of the Case Conference on November 17, 2017, and that the case conference order required the applicant to produce the requested documentation no later than January 10, 2018. The respondent submitted that the applicant has shown a pattern of delay and disrespect for procedural fairness as well as the Tribunal’s orders.

13The applicant provided no explanation for the late filing of the CNR in question. Other than arguing that she would be prejudiced if the evidence is not considered by the Tribunal, the applicant made no submission with respect to the application of the Tribunal Rules or the prior order made by the Tribunal concerning the production of evidence.

14I find that it is in the interest of fairness to admit the CNR as it is relevant to the claims that are in dispute. Not allowing the applicant to rely on the CNR may undermine her ability to make her case before the Tribunal. There is little, if any, prejudice to the respondent if I consider the CNR since the respondent did have a chance to review the CNR and has made submissions in regards to its relevance.

15I will therefore admit the CNR of Dr. Dhanoa as evidence and will, in my decision, refer to it where necessary and appropriate.

Substantive Issues: Is the applicant entitled to the medical benefits and payments sought?

16In assessing the applicant’s entitlement to the medical benefits sought, I am guided by several provisions of the Schedule. These include, among others, section 14, which makes an insurer liable to pay medical and rehabilitation benefits for an insured person who sustains an impairment as a result of an accident; and section 15, which states that insurers shall pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.

17The burden rests with an insured person to establish that the benefits sought are reasonable and necessary.

Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

18The applicant did not argue that she has injuries that are not “soft tissue” in nature. Rather, the applicant submitted that her injuries do not fall under the MIG because she was diagnosed with hypothyroidism before the accident.

19I find that the applicant has failed to provide compelling evidence that her injuries fall outside of the MIG or that she has a pre-existing medical condition which will prevent her from achieving maximal recovery if benefits are limited to the MIG cap.

20The term “minor injury” is defined in s. 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 all defined in s. 3, collectively referred as “soft tissue injuries” in this decision. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.

21Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to access increased benefits, if the injured person’s healthcare provider provides 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 cap of $3,500. The applicant has the burden of showing that the injuries are not minor injuries.

22Although the applicant did not specifically argue that she should be removed from the MIG on the basis of a psychological impairment (current or pre-existing), she did submit evidence with respect to her psychological condition.

23Relying on the psychological assessment report by Dr. Jon Mills, psychologist, dated January 29, 2016, the applicant submitted that she has demonstrated elevated levels of depression and anxiety, and that her psychological complaints—both on their own or in combination with physical symptoms and diagnosed conditions—warrant treatment outside of the MIG.

24Dr. Jon Mills diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood. With respect to the applicant’s relevant background history, Dr. Mills noted in his report that “[the applicant] reported that she is medically healthy, takes no medications, and has not undergone major surgery in the past.” There was no mention at all in Dr. Mills’ report about the applicant’s thyroid concerns or how that pre-existing condition might have affected her recovery from the accident. In fact, while giving the applicant a diagnosis of anxiety and depressed mood, Dr. Mills concluded that the prognosis for the applicant was “fair”, as the applicant was “motivated to recover and generally psychologically stable”.

25Other than Dr. Mills’ report, the applicant has not provided medical documentation suggesting that the applicant suffers from any psychological injuries or impairment.

26In reply, the respondent submitted that the applicant has failed to produce any medical documentation or reports suggesting that her pre-existing condition has been exacerbated or aggravated by the accident, and has failed to provide any medical evidence in support of her position that her pre-accident thyroid concerns would prevent her from achieving maximal recovery under the MIG.

27In contrast with Dr. Mills’ report, the respondent provided an I.E. report from Dr. Curt West, a psychologist. Dr. West prepared an I.E. report dated March 15, 2016 and a follow up I.E. report dated March 15, 2018, after he was provided with additional medical documentation from the applicant. In both reports, Dr. West noted no evidence of severe psychological or emotional symptoms, and concluded that the applicant did not suffer from any clinically significant impairment from a mental health perspective.

28Dr. West completed a Pain Patient Profile examination with the applicant and found evidence of symptom amplification (not necessarily intentional) almost to the point of invalidating the measure. Similar to the psychological test results, Dr. West noted the applicant reported an extreme level of perceived disability that is not consistent with objective medical findings. With that in mind, Dr. West noted that the applicant reported levels of anxiety, depression and pain complaints equal to the average pain patient, but higher than non-patients.

29Dr. West also noted the applicant reported she has not participated in any counselling or used any psychotropic medications since the accident. She reported no problems or difficulties of a psychological or emotional nature and noted no limitations or restrictions attributable to mental health factors. She did complain of pain, discomfort and disturbed sleep which made her more irritable after the accident. Of note is that the applicant made no mention of any prior medical condition that would affect her recovery.

30After reviewing the new medical documents provided by the applicant, Dr. West issued a subsequent report and came to the same conclusion as he did two years earlier.

31I prefer the report by Dr. West over that of Dr. Mills in part because the former had the benefit of other medical documents that were provided by the applicant. This gave Dr. West an opportunity to review his own finding, and yet he came to the same conclusion as before.

32But even if I were to accept the finding of Dr. Mills, I note that his report did not in fact address the question of whether the applicant’s pre-existing condition would place her outside of the MIG, since the applicant never mentioned any pre-existing condition to Dr. Mills. And while Dr. Mills did give a diagnosis of anxiety and depression, he also described the prognosis as fair. Finally, the fact that the applicant has not participated in any counselling, or has taken any medication to address her mental health issues, would suggest that while these issues may be present, they are not significant enough to prevent her from achieving maximal recovery within the MIG. As such, I do not find that the applicant suffers from a psychological impairment based on the totality of the evidence.

33I have also considered other medical reports dealing with the applicant’s pre-accident hypothyroidism, and the applicant’s argument that the IE Dr. David Mula (general practitioner) has failed to consider her pre-existing condition in his report. I note that Dr. Mula did specifically acknowledge that the applicant had reported pre-existing hypothyroidism and that this condition would not be expected to prevent the applicant from achieving maximum medical recovery from accident related impairments. Besides, I note that the applicant acknowledged that despite having diagnosed with hypothyroidism, she had no symptoms of depression or anxiety in at least 12 months leading up to the accident.

34In conclusion, I find the applicant’s injuries fall within the MIG.

35Other than the issue of MIG, the applicant did not provide any substantive submissions or refer to any medical evidence in support of the reasonableness or necessity of any of the benefits claimed. As the applicant bears the burden of proving her claims, I find the applicant has failed to meet that burden.

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

36As I find that the applicant is not entitled to the benefits claimed, no interest is payable.

Costs

37While I have admitted Dr. Dhanoa’s CNR into evidence, I do find the applicant’s tardiness in submitting the CNR problematic, particularly given that this was the second time the applicant was late in producing evidence, which is contrary to the Tribunal Rules and the Case Conference Order. The applicant was ordered by the Tribunal to produce a number of documents by January 10, 2018, namely:

i. Decoded OHIP summary 3 years pre-accident till present

ii. CNRs of all medical practitioners 3 years pre-accident till present

iii. Complete CNRs of the assessment centres

iv. Contact information and credentials of the providers of attendant care

38The applicant did not produce some of the medical records in question until February 5, 2018. In dismissing the respondent’s motion to exclude those records for cost, Adjudicator Makhamra cited Rule 19 of the Tribunal’s Rules of Practice and Procedure to note that costs were inappropriate because there was insufficient evidence or particulars of a conduct that was “unreasonable, frivolous, vexatious, or in bad faith”.

39Normally, a single instance of lateness in filing evidence would be insufficient to constitute conduct that is “unreasonable, frivolous, vexatious, or in bad faith”, however, when the same conduct is repeated, without any explanation, it is no longer merely an issue of tardiness. Although there is insufficient evidence to find the applicant’s conduct (or that of her counsel as the case may be) to be frivolous or vexatious, there is certainly sufficient evidence to find the repeated – and unexplained - late filing of evidence unreasonable. The Tribunal order and Rules are there to ensure fairness of the process to both parties and to promote the expeditious disposition of matters. Allowing the applicant to repeatedly file evidence late would undermine fairness and would lead to delay. As such, I find it is an appropriate case to order cost to remind the applicant and her counsel the importance of respecting the Tribunal orders and Rules.

ORDER

40The applicant’s claims are dismissed.

41The applicant is ordered to pay costs of $200 to the respondent.

Footnotes

1. 1Psychological Assessment Report from Foujian Rahmati, under the supervision of Dr. Joh Mills, psychologist, p.3
2. 2Ibid, p.3
3. 3O. Reg. 34/10.
4. 4The order dated November 17, 2017 by Adjudicator John referred to this treatment plan as being submitted on January 7, 2015, which was a typo.