17-006691 v Unifund Assurance Company
Tribunal File Number: 17-006691/AABS
Case Name: 17-006691 v Unifund Assurance Company
In the matter pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Zoran Samac, Counsel
For the Respondent: Damien Van Vroenhoven, Counsel
Written Hearing on: May 14, 2018
OVERVIEW
1[The applicant] was injured in an automobile accident (“the accident”) on June 10, 2015 and applied for insurance benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (“the Schedule”).
2Unifund approved medical and rehabilitation benefits in the amount of $3,226.00 but refused to approve further treatment on the basis that the applicant had reached the $3,500 treatment limit for minor injuries. Unifund determined 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 Minor Injury Guideline1 (“the MIG”).
3The applicant argues that he should be excluded from the MIG on the basis of having a pre-existing condition of chronic lymphocytic leukemia and having a diagnosis of chronic pain.
ISSUES
4Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?
5If the applicant’s injuries are not within the MIG, then I must determine the following issues:
i. Is the applicant entitled to receive medical benefits recommended by In Motion Rehabilitation and Wellness Centre as follows:
a. $108.00 for chiropractic treatment submitted September 21, 2015?
b. $1,705.52 for a chiropractic treatment plan, submitted January 22, 2016, and denied on February 5, 2016?
c. $1,329.14 for a chiropractic treatment plan, submitted December 8, 2015, and denied on December 21, 2015?
ii. Is the applicant entitled to payments for the cost of examinations in the amount of $1,788.16, for an In-Home Assessment for TOI Chronic Pain and Medical Assessment Inc., submitted on February 2, 2016 and denied on February 29, 2016?
iii. Is the applicant entitled to payments for the cost of examination in the amount of $1,716.47 for a Functional Abilities Assessment by TOI Chronic Pain and Medical Assessments Inc., submitted on February 2, 2016 and denied on February 29, 2016?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant’s injuries fall outside the MIG.
7I find the applicant is only entitled to payment for chiropractic services in the amounts of $1,705.52 and $1,329.14.
8I also find the applicant is entitled to payment for the cost of examination for a Functional Abilities Assessment in the amount of $1,716.47.
9Interest is due on these 2 benefits in accordance with section 51 of the Schedule.
ANALYSIS
Late Notice by the Respondent:
10Section 38(8) of the Schedule requires the insurer to notify the insured person within 10 business days whether or not it will pay for the goods and services claimed.
11Under section 38(11), if an insurer fails to comply with this requirement, it is prohibited from taking the position that the MIG applies and must pay for all goods, services, assessments and examinations of said treatment and assessment plan that related to the period, starting on the 11th business day after the insurer received the applicant, and ending on the day the insurer provides proper notice.
12After reviewing the evidence, I find that the applicant erred in counting calendar days, instead of business days, when calculating the respondent’s response time on his claims. As noted, s.38(8) specifies business days, which under s.3(1) are defined to exclude weekends and most statutory holidays.
13I counted the business days from submission of claims to notice of denial for the disputed claims, and I find that the respondent provided timely notice under s.38(8).
14The applicant’s counting error applies to all of the applicant’s calculations. I find that the respondent did provide the applicant with proper notice under section 38(8) of the Schedule.
The Minor Injury Guideline
Did the applicant sustain predominantly minor physical injuries?
15Section 3(1) of the Schedule defines a “minor injury” as “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 and includes any clinically associated sequelae to such an injury.” The MIG defines what these terms for injuries mean in more detail.
16Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500. The onus is on the applicant to show that his injuries fall outside of the MIG.2 Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits.
17The evidence from both parties is that some of applicant’s physical injuries are minor in nature: it is uncontested that he sustained sprain/strain of the cervical and lumbar spine, bilateral knee contusion, tensions headaches and left shoulder sprain/strain.
18The applicant provided a document entitled “Assessment & Report” by Dr. Gail Wright, chiropractor, dated March 13, 2018. This document details the applicant’s self-reported complaints and injuries. Dr. Wright makes comments about the applicant having neurological signs of injury, but how she comes to this conclusion is not explained; there is no formal testing or assessment mentioned or identified in this assessment. I give this document limited weight in assessing if the applicant’s injuries are predominantly minor.
19Based on the evidence before me, I find that the Applicant sustained predominately minor injuries, as defined under the Schedule, as a result of the accident.
20Having found that, I must now consider if there is compelling evidence that the Applicant suffered from a pre-existing condition, documented by a healthcare practitioner before the accident, which prevents him from achieving maximal recovery under the MIG.
Does the applicant have any pre-existing conditions?
21Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements in order to escape the MIG:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and (emphasis added by the Tribunal)
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.3
22The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict; a pre-existing condition will not automatically exclude a person’s impairment from the MIG. The MIG 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.
23The applicant argues he should be excluded from the MIG on the basis of having a pre-existing condition, in this case, glandular swelling in his neck which was later diagnosed as chronic lymphocytic leukemia.
24To support this position of having a pre-existing condition, the applicant has provided clinical notes and records (CNRs) from his family doctor at North Park Medical Centre. The notes and records show that the applicant began complaining to his family doctor of discomfort in the right side of neck area on August 25, 2014. He reported swollen glands in his neck on two other occasions in 2014 and again after his motor vehicle accident in 2015.
25Glandular swelling in the neck is not recognized as a condition that would remove an applicant from the MIG since, at face value, it is not a condition, but rather a medical sign or symptom.
26The applicant received a formal diagnosis of chronic lymphocytic leukemia in approximately June 2016 or 1 year after his motor vehicle accident. He argues that even though he only received his diagnosis after his accident, his condition was well documented.
27He also provides a letter from Dr. Gail Wright, chiropractor, titled “Assessment & Report”, dated March 13, 2018. Dr. Wright states that the applicant’s injuries from the motor vehicle accident: “were superimposed on a leukemia condition that pre-existed the accident [sic] was not diagnosed until after the accident”.
28Dr. Wright further opines that the applicant’s injuries are permanent and serious. She goes so far as to suggest that the applicant will not be able to maintain full-time employment until retirement due to the impairments he’s suffered as a result of the accident. She states that his recovery has not finished and cannot be treated within the MIG limits.
29The applicant has the obligation to show me that he has a pre-existing condition, and that this condition was documented before the accident. He has met this obligation.
30The CNRs from the applicant’s family doctor demonstrate that the applicant had complained of glandular issues prior to his accident, which on a balance of probabilities, was a sign of his impending diagnosis of chronic lymphocytic leukemia.
31I am satisfied with the evidence presented by Dr. Wright that to support that the applicant’s pre-existing condition will prevent maximal recovery from his minor injury if subjected to the $3,500 on treatment costs under the MIG.4
32Therefore, the applicant is excluded from the MIG on the basis of having a pre-existing condition.
Is the applicant entitled to receive medical benefits recommended by In Motion Rehabilitation and Wellness Centre as follows:
a. $108.00 for chiropractic treatment submitted September 21, 2015?
33The applicant’s request for funding for chiropractic treatment in the amount of $108.00 was denied on the basis of it exceeding the FSCO Professional Service Guideline5 (the “Guideline”). The Guideline is incorporated by reference into the Schedule.
34The Guideline states:
“This Guideline establishes the maximum expenses payable by automobile insurers under the SABS related to the services of any of the health care professions or health care providers listed in the Guideline. These maximums are applicable to:
- a medical benefit under clauses 15 (1) (a), (b), or (h) of the SABS;”
35The applicant has requested funding for a medical benefit that exceeds an amount payable under the Guideline. He has not provided any arguments or explanation for why the fee exceeds the maximum expense payable under the Schedule. Therefore, there is no evidence before to persuade me that the applicant is entitled to this benefit.
Is the applicant entitled to receive medical benefits recommended by In Motion Rehabilitation and Wellness Centre as follows:
b. $1,705.52 for a chiropractic treatment plan, submitted January 22, 2016, and denied on February 5, 2016?
c. $1,329.14 for a chiropractic treatment plan, submitted December 8, 2015, and denied on December 21, 2015?
36Given that the applicant’s injuries exclude him from the MIG, he is eligible for treatment up to $50,000.00 in medical and rehabilitation benefits.
37Under section 15 of the Schedule, the test is whether the treatment plan is reasonable and necessary.
38The 2 treatment plans in question both have a similar purpose, methodology and goals; to address the applicant’s pain related to his injuries, including sustained sprain/strain of the cervical and lumbar spine, bilateral knee contusion, tensions headaches and left shoulder sprain/strain.
39The 2 treatment plans are also all from the same clinic, and were denied on the same basis; that the applicant’s injuries falling within the MIG and if they do not fall within the MIG, then the treatment plans are not reasonable and necessary.
40Therefore, I will determine if the remaining 2 plans are reasonable and necessary together.
41Unifund submits the treatment plans are not reasonable and necessary because, in the opinion of its medical assessors, the applicant has reached maximum medical recovery for his accident-related injuries and any further facility-based treatment for chiropractic treatment will not improve his condition.
42Unifund further submits that it’s not reasonable or necessary for the applicant to be requesting chiropractic treatment, when it has already paid $3,000.00 for similar treatment.
43The applicant argues that the treatment plan is reasonable and necessary due to his pre-existing condition. As a result of this, the applicant submits that recovery from his injuries have been slowed down requiring continued chiropractic treatment, which has reduced his pain.
44The applicant relies on the letter of Dr. Wright to demonstrate the reasonableness and necessity of the 2 treatment plans. I bring the reader’s attention to the following passage of Dr. Wright’s Assessment & Report:
“[The applicant] very much required the therapy received at our clinic so as to be in a position to continue working. [The applicant] could not have continued working as an HVAC technician without the benefit of having his injuries managed at our clinic”.
45This evidence convinces me that the applicant’s proposed chiropractic treatment plans are both reasonable and necessary; they are vital for his ability to continue working. The treatment clearly assisted the applicant with his functionality and pain management and ensured he could continue working.
Is the applicant entitled to payments for the cost of examinations in the amount of $1,788.16, for an In-Home Assessment for TOI Chronic Pain and Medical Assessment Inc., submitted on February 12, 2016 and denied on February 29, 2016?
46The applicant seeks an in-home assessment to identify barriers to resuming activities of daily living (ADLs) in his personal living environment.
47The respondent’s only argument in response to the claim for the in-home assessment is that the applicant’s injuries fall within the MIG, and therefore, he is excluded from applying for said assessment based on section 14.2 of the Schedule.
48The applicant’s arguments in support of the need for an in-home assessment are based on Dr. Wright’s Assessment & report and the OCF-18 Dr. Wright completed for the In-Home Assessment.
49In the OCF-18 for the in-home assessment, Dr. Wright states the goals of the assessment are to: reduce pain, increase range of motion and increase strength with a functional goal of returning the applicant to his activities of normal living.
50This argument is further solidified by Dr. Wright’s aforementioned Assessment & report. One excerpt states:
“In my opinion, [the applicant] continues to be unable to perform the housekeeping and home maintenance chores that he normally performed before the accident. [The applicant] reports that he is very handy and could fix anything around his home.”
51Dr. Wright continues by declaring:
“[The applicant] continues to be limited in his work as an HVAC technician and in most of his ADLs. He is right hand dominant. His primary limitations are as follows:
Lifting and bending
Right handed task ( especially above shoulder height)
Prolonged postures, repetitive tasks
Kneeling, squatting
Reaching, pushing and pulling due to his neck, bilateral shoulder and back injuries.”
52Based on Dr. Wright’s report and the OCF-18 related to the in-home assessment, I find that the applicant has established he was suffering from a physical impairment as a result of the subject accident. The goals of improving the applicant’s ability to function at work and at home are reasonable based on the applicant’s subjective complaints.
53This impairment is to a degree that would affect his ADLs, and therefore an in-home assessment is reasonable and necessary. I find that the applicant has met the onus on him to prove that an in-home assessment is reasonable and necessary.
Is the applicant entitled to payments for the cost of examination in the amount of $1,716.47 for a Functional Abilities Assessment by TOI Chronic Pain and Medical Assessments Inc., submitted on February 12, 2016 and denied on February 29, 2016?
54The applicant has requested the cost of examination in the amount of $1,716.47 for a functional abilities assessment.
55The applicant submits that he has had to change careers as a result of the accident, from being a truck driver to an HVAC technician. He also submits that he has had to take time off work when his pain levels become unbearable.
56He supports this argument with Dr. Wright’s Assessment & Report. Dr. Wright opines that the applicant would benefit from this as a result of his accident. No further medical or financial evidence has been submitted regarding this benefit. Dr. Wright did state that the applicant did require the treatment he received at In Motion Rehabilitation & Wellness. However, Dr. Wright does not make such a statement regarding the FAE assessment. Dr. Wright simply states:
“I am of the view that [the applicant]'s injuries have interfered with his ability to work at his truck driving job as well as interfering with his ability to reach his full potential in both his full time and part time private HVAC jobs.”
“[The applicant] is 39 years old and, in my opinion, he is at serious risk of being unable to work as an HVAC sheet metal installer until full retirement age.”
57The respondent denied this treatment plan and argues that it is neither reasonable nor necessary. It argues that the applicant has been working continuously at his pre-accident job. This argument is based on what it describes as the contradictory evidence that the applicant reported to its own assessors.
58The respondent advances its position with an Insurance Examination (IE) conducted by Dr. Moshiri, Registered Psychologist, on January 23, 2016. The applicant reported to Dr. Moshiri that he had stopped working as a truck driver sometime in January 2015, or approximately 6 months before his accident. He also states he was working as an HVAC technician part-time before his accident and then full-time after quitting his job as a truck driver.
59The respondent further argues that the applicant’s employment history is inconsistent by submitting the IE conducted by Dr. Belfon, physician, on February 8, 2016. The applicant reported that at the time of his accident, he was employed on a full-time basis as a sheet metal and duct work install at A.C.A, where he has been employed since 2012. He does not mention any employment changes or difficulties, other than having to “warm up in the morning with exercise and stretches” prior to going to work.
60The applicant has previously established that he is dealing with chronic pain. He has also proven that he is working. The issue of him needing to change jobs as a result of the accident is irrelevant in determining if the FAE assessment is reasonable and necessary.
61Instead, I turn to the OCF-18 related to the assessment itself. The OCF-18 for the FAE was completed by Dr. Wright on February 12, 2018. The goals of this assessment are to assist the applicant with:
i. Pain reduction
ii. Increase in strength
iii. Increased range of motion
iv. Return to activities of normal living
62Based on Dr. Wright’s report and the OCF-18 related to the FAE, I find that the applicant has established he was suffering from a physical impairment as a result of the subject accident. This impairment is to a degree that would affect his employment, and therefore a FAE is reasonable and necessary.
Is the applicant entitled to interest on any overdue payment of benefits?
63The applicant is entitled to interest on the overdue benefits for chiropractic services in the amount of $1,705.52 and $1,329.14.
64The respondent shall pay interest on the overdue amount in accordance with the Schedule.
CONCLUSION
65For the reasons outlined above, I find that:
i. the applicant sustained predominately minor injuries as defined in the Schedule;
ii. the applicant has established that he has a pre-existing medical condition that prevents recovery under the MIG;
iii. the applicant is not entitled to:
a. a medical benefit in the amount of $108.00 for chiropractic treatment;
iv. the applicant is entitled to:
a. a medical benefit in the amount of $1,705.52 for chiropractic treatment;
b. a medical benefit in the amount of $1,329.14 for chiropractic treatment;
c. an in-home assessment in the amount of $1,788.16;
d. a functional abilities assessment in the amount of $1,716.47; and
e. interest on the overdue payment of benefits.
Released: August 13, 2018
___________________________
Stephanie Kepman, Adjudicator
Footnotes
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- Minor 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”.
- Minor 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”.
- Superintendent’s Guideline No. 03/14