Licence Appeal Tribunal
Tribunal File Number: 17-000982/AABS
Case Name: 17-000982 v Unifund
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
and
Unifund
Respondent
DECISION
ADJUDICATOR: Gemma Harmison
Written Submissions by:
For the Applicant: Andrej Rondas, Paralegal
For the Respondent: Anju Sharma, Counsel
Written Hearing: July 17, 2017
OVERVIEW:
Introduction:
1The applicant was involved in an automobile accident on January 13, 2011. He was a passenger in a vehicle driven by his friend when their vehicle collided with another vehicle. The applicant took a bus home after the accident. He did not require immediate medical treatment. He saw his family doctor eight days later. He also attended physical treatment sessions at a clinic because he reported experiencing pain including in the areas of his neck, back, chest and extremities.
2As a result of the accident, the applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent funded treatment for the applicant up to the Minor Injury Guideline (“MIG”) treatment cap of $3,500, but it denied other benefits for which he had applied.
3In February 2017, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (“Tribunal”) disputing the respondent’s denial of non-earner benefits (“NEBs”), as well as the respondent’s denial of four treatment plans.
4It is the respondent’s position that the applicant is time-barred from proceeding with his claim for NEBs at the Tribunal because he did not bring his dispute for NEBs within 2 years of the respondent’s refusal to pay those benefits. In the alternative, the respondent submits that the evidence does not support a finding that the applicant suffers a complete inability to carry on a normal life as a result of the accident, as would be required for him to be eligible for NEBs.
5With respect to the four disputed treatment plans, the respondent maintains its position that the applicant’s accident-related injuries are predominantly minor and subject to the MIG treatment cap of $3,500, and since the respondent has already paid medical benefits for the applicant up to the $3,500 MIG cap, he is not entitled to any further payment for medical benefits. The applicant contends that his injuries are not minor and therefore he should not be confined to the MIG treatment cap of $3,500.
Procedural Issue – Change in Hearing Format:
6In April 2017 the parties participated in a case conference at the Tribunal but they were unable to resolve the issues in dispute. As per the case conference order, on consent of the parties a hybrid hearing was scheduled for July 17, 2017, consisting of both submissions in writing, as well as an in-person component to allow for cross-examination of the applicant and each party’s medical witnesses since NEBs were in dispute. The case conference order also set out a timetable for the parties to serve and file their written submissions and evidence, with the applicant’s initial written submissions and evidence due first, by June 5, 2017.
7Although the applicant did submit initial written submissions and evidence by his prescribed due date, his submissions did not address the respondent’s position that his claim for NEBs is time-barred. After reviewing the applicant’s initial submissions, the respondent sought to have the in-person portion of the hearing cancelled and the matter heard entirely as a written hearing, first by writing to the applicant’s legal representative seeking consent to the proposed change in format, and subsequently by filing a motion with the Tribunal.
8For reasons outlined in the Motion Order dated June 21, 2017, Vice-Chair Hunter granted the respondent’s motion and ordered the matter to proceed entirely as a written hearing.
ISSUES TO BE DECIDED:
9Having reviewed the case conference order as well as the evidence and submissions of the parties, I have determined that the issues to be decided at this hearing are as follows:
(a) Is the applicant barred per section 56(1) of the Schedule from proceeding with his claim for NEBs at the Tribunal because he did not bring his dispute for NEBs within 2 years of the respondent’s refusal to pay that benefit?
(b) If the answer to issue (a) above is no, is the applicant entitled to NEBs in the amount of $185.00 per week for the period of July 14, 20111 to date and ongoing?
(c) 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 MIG?
(d) If the answer to issue (c) above is no, is the applicant entitled to medical and rehabilitation benefits recommended in the following Treatment and Assessment Plans (OCF-18s) that were denied by the respondent:
i. OCF-18 completed by Markham Pain Solution Center in the amount of $1,995.00 for the cost of examination for a psychological assessment, submitted on October 19, 2015?
ii. OCF-18 completed by Markham Pain Solution Center in the amount of $2,465.32 for psychological treatment, submitted on January 7, 2016?
iii. OCF-18 completed by Markham Pain Solution Center in the amount of $1,995.00 for medical services, submitted on March 21, 2016?
iv. OCF-18 completed by Dynamic Health and Sports Injury Clinic in the amount of $1,871.76 for medical services, submitted on May 26, 2016?
(e) Is the respondent entitled to costs under Rule 19.1 of the Tribunal’s Rules?
RESULT:
10For reasons set out below, I find that:
i. The applicant did not bring his dispute for NEBs within 2 years of the respondent’s refusal to pay that benefit and, as a result, he is time-barred from proceeding with his claim for NEBs at the Tribunal. Since I have found that the applicant is time-barred from proceeding with his claim for NEBs, there is no entitlement to NEBs and his claim for NEBs is dismissed.
ii. The applicant has failed to prove that his injuries are not predominantly minor. Since I have found the applicant has not proven his injuries fall outside of the MIG, and since he has already exhausted the MIG treatment cap of $3,500, he is not entitled to payment for any of the disputed treatment plans.
iii. The respondent is not entitled to costs under Rule 19.1.
ANALYSIS:
Is the applicant time-barred from proceeding with his claim for NEBs?
11Per section 56(1) of the Schedule, an insured person must dispute the denied benefit within 2 years of the respondent’s refusal to pay the benefit.
12In its evidence for the hearing, the respondent submitted a copy of correspondence it sent to the applicant informing him that it had denied his claim for NEBs. That correspondence is dated July 11, 20112. I am satisfied having reviewed that correspondence that the respondent’s denial was clear and unequivocal.
13The applicant’s submissions do not address or in any way respond to or refute the respondent’s position that the applicant’s claim for NEBs is time-barred. No evidence was submitted by the applicant for the hearing to contradict the respondent’s position that it had denied the applicant’s claim for NEBs with its correspondence dated July 11, 2011.
14In the absence of any evidence to the contrary, I accept as fact that the respondent notified the applicant of its refusal to pay him NEBs with its correspondence dated July 11, 2011.
15The applicant filed his application to the Tribunal in February 2017, which is more than 5 years after the respondent’s correspondence of July 11, 2011 advising him of its refusal to pay him NEBs.
16Based on the evidence before me I find that the applicant is time-barred from proceeding with his claim for NEBs because he did not bring his dispute within 2 years of the respondent’s refusal to pay that benefit as required by section 56(1) of the Schedule.
17Because I have found that the applicant is time-barred from proceeding with his claim for NEBs at the Tribunal, there is no entitlement to NEBs and his claim for NEBs is dismissed.
Are the applicant’s injuries predominantly minor?
18The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 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 also defined in section 3.
19Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits to $3,500 for minor injuries.
20Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 limit if there is compelling evidence that the pre-existing medical condition will prevent the insured person from achieving maximal recovery if limited to the $3,500 MIG cap.
21The applicant bears the onus of proving, on a balance of probabilities, that his injuries are not minor, and that he should not therefore be subject to the MIG treatment cap of $3,500.
22For reasons that follow, I find that the applicant has failed to meet his onus. Based on the evidence before me, I find he has not proven he suffered an accident-related physical or psychological impairment that would fall outside the definition of a minor injury, and further find he has not proven he suffered from a documented pre-existing medical condition that would prevent him from achieving maximal recovery if confined to the MIG treatment cap.
Applicant’s Evidence
23The applicant submitted only two documents as evidence for the hearing: a Disability Certificate (OCF-3), and a Psychological Report, both of which I will outline in further detail below. The applicant did not submit as evidence any clinical notes and records (“CNRs”) from his family physician or from any other treating practitioner(s). The applicant submitted none of the disputed Treatment and Assessment Plans (OCF-18s) in his evidence for the hearing, in which the practitioner completing the OCF-18 is asked to identify, among other things, the applicant’s accident-related diagnoses; whether the applicant has any known pre-existing injuries, conditions or illnesses which could potentially prevent him from recovering if subject to the MIG treatment cap; and any other barriers in terms of his recovery.
24The Disability Certificate (OCF-3) was completed by Dr. Christian Jay, chiropractor at Extreme Health Rehab Clinic3. This document is dated January 20, 2011 (7 days post-accident) and lists the applicant’s accident-related physical injuries to include whiplash associated disorder (WAD3); sprain/strain injuries of the thorax, shoulder, and knee; radiculopathy of the cervical and lumbar regions of the spine; vertebral subluxation complex of the thoracic and sacral regions of the spine; muscle strain of the upper arm; and headache. Under Part 8 of the Disability Certificate, Dr. Jay answered “no” when asked whether the applicant had any prior disease, condition or injury before the accident.
25The Psychological Report is co-signed by psychometrist Paul Gardiner and supervising psychologist Dr. Leon Steiner4. This report is dated November 10, 2015 and outlines the results of their assessment of the applicant on October 17, 2015 (over 4 ½ years post-accident). The assessment consisted of a clinical interview along with four psychological self-report questionnaires administered to the applicant. As detailed in their report, during the assessment the applicant reported having an unremarkable medical history; he advised that he was in good health prior to the accident and he denied any history of prior psychological difficulties. The applicant’s assessors opined that his presentation at the time of their assessment was consistent with a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. They opined that this diagnosis was in direct result of the motor vehicle accident “as he was reportedly functioning well prior to [the] accident.” The report concluded by recommending 12 sessions of counselling for the applicant to address his symptoms of depression and anxiety, which the assessors opined would additionally help alleviate his stress and improve his sleeping and pain management. The assessors further opined that since the assessment was undertaken nearly 5 years post-accident, and since that the applicant was continuing to report ongoing pain, he was vulnerable to developing a chronic pain disorder.
26The written submissions from the applicant essentially summarize or directly quote from the information contained in the two documents referenced above. The submissions contend that the applicant continues to suffer from a number of physical injuries and that, per the above psychological report from his assessors, he is vulnerable to developing a chronic disorder. The submissions do not however clearly or explicitly advance the position that the applicant should be removed from the MIG on a physical basis. The submissions do however explicitly assert that the applicant’s own assessors’ diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood “places him outside of the [MIG]”.
Respondent’s Evidence
27The respondent’s evidence for the hearing included multiple Insurer Examination (IE) reports, CNRs of the applicant’s family physician, and correspondence that the respondent had sent to the applicant at various points while adjusting the applicant’s claim.
28Dr. John Crescenzi, Chiropractic Rehabilitation Specialist, conducted an IE Paper Review and in his corresponding report dated March 8, 20115 opined that as a result of the accident the applicant sustained “uncomplicated soft tissue injuries to his neck, shoulders and back”. Dr. Crescenzi specifically commented that although the applicant’s chiropractor Dr. Jay listed WAD3 and radiculopathy as being among the applicant’s accident-related injuries, Dr. Crescenzi noted that “no hard neurological findings or evidence of any neurological compromise has been provided to support a diagnosis of true cervical or lumbar radiculopathy”. Dr. Crescenzi additionally noted that there was no evidence of any fracture or dislocation, and no report of any pre-existing diseases, conditions or injuries that would affect the applicant’s recovery. Dr. Crescenzi concluded that the applicant’s injuries were minor injuries and could be treated within the MIG protocol.
29Subsequent in-person IEs in 2011 and 2016 all concluded that the applicant’s accident-related physical injuries were predominantly minor and consisted of WAD2; neck and back strains; and soft tissue knee injury. The IE report of orthopaedic surgeon Dr. Osinga6 noted that the applicant had objective functional range of motion, adequate strength, and normal neurologic examination of the neck, lower back and knee. The IE report of Dr. Weisleder7 indicated a prognosis for full recovery. The general practitioner IE report of Dr. Dharamshi8 noted that the applicant reported he had not been referred for any diagnostic imaging such as x-rays, MRIs or ultrasounds, nor had he been referred to any specialists in respect of his physical injuries. Dr. Dharamshi further noted that there was no documentation that the applicant had any pre-existing conditions before the accident that would prevent the applicant from achieving maximal recovery within the MIG treatment cap.
30An IE in-person psychological assessment of the applicant was conducted Dr. Rodney Day on November 11, 2015. Dr. Day prepared a corresponding report9 as well as a subsequent addendum report10. Dr. Day reported that his assessment of the applicant did not indicate the presence of any accident-related psychological diagnosis or impairment, and further that there was no evidence of a pre-existing psychological condition that was exacerbated by the motor vehicle accident. In his subsequent addendum report, Dr. Day specifically reviewed the psychological assessment report of the applicant’s own assessors (which had not been available to Dr. Day at the time of his in-person assessment of the applicant) and Dr. Day’s original opinion remained unchanged.
31The respondent also submitted as evidence a letter it sent to the applicant dated April 5, 201211 (just over one year post-accident). The letter indicated that the applicant’s treating clinic advised the respondent that the applicant had completed his treatment at the clinic on January 27, 2012, and that the clinic advised that it discharged the applicant as his accident-related impairment had resolved.
32The respondent additionally submitted as evidence CNRs of the applicant’s family physician12. The respondent indicates that the family physician’s CNRs had been produced to the respondent up to 2016. The respondent submits that the CNRs contain only 11 post-accident visits in the five years post-accident, with no mention of the subject accident other than the initial post-accident visit on January 21, 2011 (8 days post-accident).
Does the applicant have a physical impairment that would take him out of the MIG?
33I find that the applicant has failed to prove that he sustained an accident-related physical impairment that falls outside of the MIG.
34Having reviewed the CNRs of the applicant’s family physician as provided by the respondent, I agree that the only entry in the CNRs which clearly and explicitly refers to the motor vehicle accident is the entry of January 21, 2011 (8 days post-accident). I place little weight on Dr. Jay’s reference in the OCF-3 to WAD3 and radiculopathy given the absence in the family physician’s CNRs in the years post-accident to any ongoing accident-related physical complaints made by the applicant, the absence of any diagnostic imaging reports, and the absence of referrals made by the family physician to any specialists. All of the IE assessors concluded that the applicant’s accident-related physical injuries were consistent with predominantly minor injuries as defined by the Schedule, and I find the applicant has failed to submit evidence to convince me otherwise.
Does the applicant have a psychological impairment that would take him out of the MIG?
35I find that the applicant has failed to prove that he sustained an accident-related psychological impairment that falls outside of the MIG.
36I found the respondent’s submissions and evidence to be more convincing and persuasive. In its submissions, the respondent points out that the applicant was assessed by his psychological assessors nearly 5-years post-accident. The respondent submits that while the applicant’s assessors provided a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, and opined that this diagnosis was in direct relation to the motor vehicle accident, their conclusions were based largely on the applicant’s self-report. The respondent further points out that the applicant did not report any psychological complaints to his family physician in the years post-accident, and was not prescribed any psychotropic medications.
37While I find that an individual’s self-report should not be entirely discounted, in the particular circumstances of this case, given the passage of nearly 5 years between the accident and the date of the psychological assessment by the applicant’s assessors, I find their opinion as to diagnosis as well as causation to the accident to be problematic, particularly given the absence in the records of the applicant’s family physician to any accident-related psychological complaints by the applicant in the post-accident years. I find it reasonable to expect that, had the applicant been experiencing accident-related psychological difficulties post-accident, he would have consulted his family physician – his primary care provider – about any such issues. The applicant has produced no evidence to show that he complained of or sought treatment from any practitioner or mental health provider for accident-related psychological issues in the intervening time between the accident in January 2011 and the submission of the OCF-18 requesting a psychological assessment in October 2015.
Does the applicant have any pre-existing injuries that would take him out of the MIG?
38The applicant submitted no evidence to establish that he suffered from a documented pre-existing condition that would prevent him from achieving maximal recovery if subject to the MIG treatment cap. Neither the OCF-3 nor the Psychological Report relied on by the applicant indicate that he had any pre-existing physical or psychological conditions before the accident. The applicant has therefore failed to prove that he should be removed from the MIG on this basis.
39Since the applicant has not proven that he sustained injuries that fall outside the MIG, and because he has already exhausted the $3,500 MIG treatment cap, he is not entitled to any of the treatment plans in dispute. I do not need to address the reasonableness and necessity of the treatment plans.
Is the respondent entitled to costs under Rule 19.1?
40In its written submissions, the respondent specified13 that it was seeking costs on the basis that the applicant claimed entitlement for NEBs despite the NEB claim being time-barred, and submits that this aspect of the applicant’s claim is frivolous and unreasonable. The respondent argues that it raised the time limitation issue in its original response to the application. It further submits that it was “forced” to request a hybrid hearing at the time of the case conference because a specified benefit (NEBs) was being sought, and the respondent would have preferred a written hearing because it is more efficient and cost effective. It notes that the applicant did not address the time limitation issue in his hearing submissions and otherwise “scantily made reference” to the issue of entitlement to NEBs in his hearing submissions. Counsel for the respondent wrote to the applicant’s legal representative on June 6, 2017 requesting that the hearing proceed solely as a written hearing and when respondent counsel did not receive a response from the applicant’s legal representative, the respondent then wrote to the Tribunal on June 15, 2017 enclosing a notice of motion. The respondent contends that it expended “significant time” preparing to defend the NEB claim which required “additional research and investigation” with respect to the limitation defence.
41The respondent included in its submissions a bill of costs for its expenses for both the case conference and the hearing14 and contends it should be entitled to its incurred expenses.
42Having considered the respondent’s submissions, and for reasons that follow, I decline to make an order of costs to the respondent.
43The respondent is seeking to recoup its incurred costs for both the case conference and for the hearing. However the NEB claim was but one aspect which formed the basis of the applicant’s application to the Tribunal. The applicant also disputed other benefits which were not time barred. The fact that the respondent raised the time limitation issue in respect of the NEB claim in its original response to the application, and the fact that the applicant continued to pursue the NEB claim at the case conference and the hearing, does not, in my view, in and of itself give rise to a finding of frivolous or unreasonable conduct by the applicant since defences to a time-limitation issue are available under the Schedule. The fact that the applicant’s legal representative failed to address the time limitation issue in his submissions and that the applicant was ultimately unsuccessful on that issue at this hearing does not in my opinion equate or give rise to a finding that the pursuit of the NEB claim was frivolous or unreasonable.
44Further, an award of costs is not meant to be an assessment of the actual costs a party has had to incur as a result of defending a claim.
45For these reasons, I decline to make an order of costs to the respondent.
CONCLUSION:
46For reasons set out above, I find that that:
i. The applicant did not bring his dispute for NEBs within 2 years of the respondent’s refusal to pay that benefit and, as a result, he is barred from proceeding with his claim for NEBs at the Tribunal. Since I have found that the applicant is time-barred from proceeding with his claim for NEBs, there is no entitlement to NEBs and his claim for NEBs is dismissed.
ii. The applicant has failed to prove that his injuries are not predominantly minor. Since I have found the applicant has not proven his injuries fall outside of the MIG, and since he has already exhausted the MIG treatment cap of $3,500, he is not entitled to payment for any of the disputed treatment plans.
iii. The respondent is not entitled to costs under Rule 19.1.
Released: February 1, 2018
Gemma Harmison, Adjudicator
Footnotes
- The case conference order identified the date of onset for the NEB claim as commencing January 13, 2011 (the date of the motor vehicle accident), however as per the Schedule there is a 26 week waiting period for NEBs. Accordingly, I have amended the date of onset for the NEB claim as commencing July 14, 2011 (the 26 week mark) in accordance with the Schedule.
- Respondent’s Submissions, Tab 4
- Applicant’s Submissions, Tab 2
- Applicant’s Submissions, Tab 3
- Respondent’s Submissions, Tab 12
- IE Report of Dr. Christopher Osinga dated July 14, 2011 – Respondent’s Submissions Tab 13
- IE Report of Dr. Louis Weisleder dated July 5, 2011 – Respondent’s Submissions Tab 3
- IE Report of Dr. Shafik Dharamshi dated February 29, 2016 – Respondent’s Submissions Tab 15
- IE Report of Dr. Rodney Day dated November 11, 2015 - Respondent’s Submissions Tab 17
- IE Addendum Report of Dr. Rodney Day dated February 29, 2016 - Respondent’s Submissions, Tab 18
- Respondent’s Submissions, Tab 14
- Respondent’s Submissions, Tab 6
- Respondent’s Written Submissions, paragraph 38
- Bill of Costs, Respondent’s Submissions Tab 28.