17-006328 v Unifund Assurance Company, 2018 CanLII 112130

Date: 2018-09-24

Tribunal File Number: 17-006328/AABS

Case Name: 17-006328 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:

Applicant

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

Counsel for the Applicant: Claudia Batista

Counsel for the Respondent: Nick Hamilton

HEARD In Writing on: April 30, 2018

OVERVIEW

1The applicant, [the applicant], was involved in an automobile accident on February 19, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, Unifund Assurance Company (“Unifund”), denied her claim for benefits.

2Unifund contends that all of the [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 Guideline² (“the MIG”). The applicant’s position is the opposite.

3If [the applicant]’s position is correct, then I must address the issue of whether the medical treatment claimed is reasonable and necessary.

4If Unifund’s position is correct, then [the applicant] is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

DISPUTED BENEFITS

5Did [the applicant] sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

6If [the applicant]’s injuries are not within the MIG, then I must determine the following issues:

1. Is [the applicant] entitled to a medical benefit in the amount of $2,819.08 for chiropractic services recommended by Perfect Physio & Rehab Centre in a treatment plan (OCF-18) dated October 3, 2015, submitted to the respondent on October 5, 2015 and denied on October 15, 2015?

2. Is [the applicant] entitled to the cost of a psychological assessment in the amount of $2,000.00 recommended by Perfect Choice Physio & Rehab Centre in an OCF-18 dated July 27, 2016, submitted to the respondent on August 1, 2016 and denied on August 10, 2016?

3. Is [the applicant] entitled to interest on overdue benefits payments from Unifund?

FINDINGS

7I find that [the applicant] has proven that he is entitled to benefits above the cap set by the MIG.

8As the result of my finding, I assessed the submissions on the disputed treatment plans and found that:

i. The treatment plan for chiropractic treatment is reasonable and necessary.

ii. The treatment plan for psychological assessment is not reasonable and necessary. Thus, this portion [the applicant]’s appeal is denied.

9Interest is due on overdue benefits payments, at the prescribed rate.

REASONS

Background

10At the time of the accident, [the applicant] was a general labourer in a convenience store owned by his spouse.

11[The applicant] was rear-ended while stopped at a pedestrian crossing. Police and emergency personnel did not attend the scene. [The applicant] was able to exit his vehicle, exchange information with the other driver and proceed to work. He did not seek medical attention on the day of the accident.

The Minor Injury Guideline

12Section 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 in detail what these terms for injuries mean.

13The onus is on [the applicant] to show that his injuries fall outside of the MIG.³

Did the applicant sustain predominantly minor physical injuries?

14[The applicant] acknowledges that his physical injuries are predominantly soft-tissue “minor injuries” as defined by the Schedule. He sustained injuries to neck muscles and tendons, sprain and strain of ribs and sternum, dislocation, sprain and strain of joints and ligaments of the lumbar spine, pelvis, thorax (midsection) and shoulder girdle.

15However, [the applicant] argues that he should be removed from the MIG because:

i. He sustained psychological injuries as a result of the accident.

ii. He suffers from a chronic pain condition, which is not governed by the MIG.

Does the applicant have psychological impairments as a result of the accident?

16The applicant claims that he sustained a psychological injury as a result of the accident that places his claims outside of the MIG.

17Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

18I find that [the applicant] does not have a psychological injury as a result of the accident that would take him out of the MIG.

19[The applicant] relies on the OCF-18 and accompanying report prepared by Dr. Ming Che Yeh, psychologist, dated July 27, 2016, which:

i. diagnoses [the applicant] with mixed anxiety and depressive disorder;

ii. notes [the applicant]’s sleep problems, difficulty with concentration and memory, emotional challenges with frustration and irritation; and

iii. recommends psychological treatment or counselling.

20To rebut [the applicant]’s claim of psychological injury, Unifund submits that the following evidence contradicts any finding of psychological injury as the result of the accident:

i. an insurer’s examination (IE) report from Dr. Kelly McCutcheon, psychologist, dated January 6, 2016, in which [the applicant]’s anxiety and depression were defined as “subclinical in nature”, his impairment “is not of a sufficient incapacitating degree” and “therefore psychological treatment is not warranted at this time”;

ii. clinical notes and records (CNRs) of [the applicant]’s family physician Dr. Kwan, with no mentions of psychological impairments;

iii. prescription records and CNRs indicating that no psychotherapeutic medications have been prescribed or taken by [the applicant] since the accident.

21I have concluded that [the applicant] has not proven that he has suffered psychological injuries that would warrant his removal from the MIG, because the IE report from Dr. McCutcheon is more persuasive than Dr. Yeh’s report. The IE report included a clinical interview, psychometric tests (whose scores placed [the applicant] at the low/mild end of any disorder spectrum) and validity testing. Dr. Yeh reached his diagnostic conclusions based on [the applicant]’s self-reporting with no analysis or explanation. I note that the inventory tests of the type conducted by Dr. McCutcheon are recommended in Dr. Yeh’s OCF-18 to evaluate [the applicant]. My findings noted in para. 20(ii-iii) also support this conclusion.

Does [the applicant] have a chronic pain condition that would warrant removal from the MIG?

22I find that [the applicant] has a chronic pain condition arising from the accident that places him outside of the MIG.

23Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions. Moreover, chronic pain, if established, should not be included in the MIG definition as a sequela to minor injuries.⁴

24[The applicant]’s submission states: “as a result of the accident, [he] suffered mainly soft tissue injuries. However, as it happens with a percentage of those with soft tissue injuries, [he] did not recover in the usual healing time seen with these types of injuries. [[The applicant]] has not reached his pre-accident state, and […] suffers from chronic pain.”

25Neither party provided me with any coherent, evidence-based criteria against which to assess [the applicant]’s claim of chronic pain for the purposes of a MIG determination. However, [the applicant]’s submissions suggest two reasonable criteria for assessing his claim for chronic pain, namely:

i. longer than usual healing time for the injuries or condition experienced – in his case over six months after the accident, and

ii. continuing, significant limits on function with impacts on work, housekeeping and social activities.

26To support his claim, [the applicant] relies on:

i. The OCF-18 dated October 3, 2015 from Dr. Georgia Palantzas, chiropractor, which notes “injuries are chronic at this stage”, reports his radicular symptoms, difficulties with sustained postures and lifting, overhead reaching and push/pull manoeuvres, and describes functional impairment resulting in modified work duties and restricted housekeeping and social activities.

ii. Earlier reports from Dr. Palantzas, including an OCF-24⁵ dated July 4, 2015, in which Dr. Palantzas opined that [the applicant] required further treatment beyond the MIG limits.

27I note that the psychological assessment by Dr. McCutcheon described [the applicant]’s significant loss of activities of daily living including outdoor home maintenance (e.g., gardening, lawn care, snow removal) and housekeeping chores. It is also noteworthy that Dr. McCutcheon assessed YZM as being truthful, positive and not inclined to exaggeration or embellishment.

28Unifund simply asserts that [the applicant] has not proven, on balance, that he sustained a chronic pain condition as the result of the accident. It asserts that there is evidence to the contrary:

i. an insurer’s examination (IE) by Dr. Nikolaos Harmantas, dated January 6, 2016, in which the doctor reports that his examination revealed no evidence of physical restriction or functional limitations from a musculoskeletal perspective and gave an optimistic prognosis for recovery regardless of treatment;

ii. the lack of any mention of accident-related complaints in the CNRs of [the applicant]’s family physician, Dr. Kwan, with the only pain-related complaints linked to such activities as shovelling snow and attempting sit-ups.

29My conclusion that [the applicant] has a chronic pain condition arising from the accident that places him outside of the MIG is based on the following:

i. [The applicant] continued to suffer functional impairments due to pain with impacts on his activities of daily ten months⁶ after the accident, which I find strongly indicative of a chronic pain condition.

ii. My reading of Dr. Harmantas’s report is that it did not deny [the applicant]’s pain complaints nor his account of impairments, but simply confirmed that he was capable of relatively unrestricted movement. The report indicates a normal healing time of six month’s for the soft-tissue injuries sustained by [the applicant] and offers no explanation for the pain persisting over eight months post-accident.⁷ Accordingly, I do not find Dr. Harmantas’s report unambiguously refutes [the applicant]’s claim.

iii. [The applicant]’s failure to complaint to his GP about pain may be atypical of chronic pain sufferers, but it is not in my view conclusive evidence against him, nor is the evidence that he continues light housekeeping, modified work (in a small family business) or exercise. This is especially so when Unifund’s own assessors note that [the applicant] has been working diligently to address his injuries with prescribed exercise programs and effort. In my view, an applicant’s attempts to live a normal life despite pain should not be used against his claim of chronic pain.

Medical Benefit: Chiropractic Treatment

30[The applicant]’s claim for chiropractic and other treatments is allowed.

31The OCF-18 strikes me as reasonable in response to [the applicant]’s ongoing pain complaints, and Unifund makes no specific submissions disputing its proposed methodology, efficacy or cost.

Medical Benefit: Psychological Treatment

32[The applicant] has not proven his entitlement to the claimed cost of psychological examination.

33For the reasons noted above, I find that he has not proven a level of psychological injury or impairment that requires further assessment or treatment. As I noted above, Dr. McCutcheon’s IE assessment appears to have covered the diagnostic interviewing, inventorying/testing and evaluation recommended in the OCF-18: further evaluation would be redundant.

34[The applicant]’s claim for the cost of psychological examination is denied.

Interest

35Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

36Section 51(4) provides that interest on benefits in dispute is payable for the period that begins on the date on which an application is brought to the Tribunal and ends on the date a settlement is reached or a decision is issued.

37Having determined that [the applicant]’s claim for chiropractic treatment should be allowed, interest is due on overdue payment of that benefit, at the prescribed rate.

CONCLUSIONS

38[The applicant]’s injuries are not governed by the MIG.

39[The applicant]’s claim for chiropractic treatment is allowed.

40[The applicant]’s claim for the cost of psychological examination is denied.

41Interest is due on the overdue benefit payments for the claimed chiropractic treatment, at the prescribed rate.

Date of Issue: September 24, 2018

___________________________

Christopher A. Ferguson,

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para. 24.
4. 417-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 at paras. 20, 23-24.
5. 5Also known as a Minor Injury Treatment Discharged Form.
6. 6The assessment was conducted on December 12, 2015.
7. 7The date of assessment was November 5, 2015.