K.H. v. Unifund Assurance Company, 2018 CanLII 132565

Date: November 20, 2018

Case Name: 17-007586 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:

K. H.

Appellant(s)

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Francesco Blasi, Paralegal

For the Respondent: Jonathan Tatner, Counsel

HEARD in Writing: June 11, 2018

OVERVIEW

1The applicant K.H. was involved in an automobile accident on October 18, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when Unifund denied her claim.

2Unifund denied the KH’s claims because it 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 Guideline² (“the MIG”). KH’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 the respondent’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 benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

5Did KH sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

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

(i) Is KH entitled to a medical and rehabilitation benefit in the amount of $500.00 for chiropractic treatment recommended by Royal West Wellness and Rehab Corp. in a treatment plan (OCF-18) submitted on December 15, 2016, and denied on March 29, 2017?

(ii) Is KH entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for psychological assessment recommended by Pilowsky Psychological Professional Corp. in a treatment plan (OCF-18) submitted on December 22, 2016, and denied on March 30, 2017?

(iii) Is KH entitled to a medical and rehabilitation benefit in the amount of $3,129.48 for psychological treatment recommended by Pilowsky Psychological Professional Corp in an OCF-18 submitted on January 11, 2017, and denied on March 30, 2017?

(iv) Is KH entitled to interest on any overdue payment of benefits?

(v) Is KH entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

7I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.

8KH’s appeal is dismissed. Accordingly her claim for an award is also denied.

9Unifund’s cost request is denied.

REASONS

The Minor Injury Guideline

10Section 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.

11The onus is on the applicant to show that her injuries fall outside of the MIG³

Did the applicant sustain predominantly minor physical injuries?

12KH does not claim that the physical injuries she sustained as a result of the accident are not predominantly minor.

13KH claims that she sustained a psychological injury as a result of the accident that place her claims outside of the MIG.

14Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

Does KH suffer from psychological injuries or impairments as a result of the accident?

15KH relies on the opinions of Dr. Judith Pilowsky, psychologist, to prove her claim of psychological injuries. In a psychological assessment report dated February 17, 2017, Dr. Pilowsky:

(i) diagnoses KH with adjustment disorder with depressed mood and vehicular anxiety;

(ii) reports that PCS⁴ tests indicate that KH’s somatic condition (i.e. her ability to cope with pain) may deteriorate if her emotional experience is not properly addressed;

(iii) reports test scores of moderate depression and moderate anxiety based on BDI II and BAI⁵ results respectively.

16Unifund rebuts KH’s claim on the strength of its insurer’s examination conducted by Dr. Jonathan Siegel on January 27, 2017. In his IE report dated March 14, 2017, Dr. Siegel:

(i) finds no basis for a psychological diagnosis;

(ii) reports that KH acknowledged driving her car daily to work and has driven on the highway since the accident – something not reported by Dr. Pilowsky;

(iii) reports that KH stated that she did not want or need psychological intervention;

(iv) reports test scores indicating the absence of clinically associated depression or anxiety based on RDSI⁶ results, and a PCS score that suggests the absence of any tendency to catastrophize pain.

17Dr. Siegel issued an addendum to his IE report on April 27, 2017. Dr. Siegel’s findings remained unchanged after close review of Dr. Pilowsky’s report and her OCF-18s.

18I note that KH’s submission indicates that she denies stating to Dr. Siegel that she did not want or need psychological intervention. Her denial, unsupported by corroborating information or affidavit, is simply a submission and is insufficient to disprove the evidence of a licensed and regulated medical professional.

19I find that KH has failed to meet the onus on her to prove that she has psychological injuries that would remove her from the MIG. My reasons for reaching this conclusion are:

(i) KH’s uncontroverted acknowledgement to Dr. Siegel of regular driving with only minor nervousness contradicts the diagnosis of vehicular anxiety, a diagnosis that Dr. Pilowsky did not support with analysis of KH’s pre- and post-accident driving patterns;

(ii) KH’s statement that she did not want or need psychological intervention undermines the contention of psychological injury warranting removal from the MIG. This is especially so since her comments correspond with test results obtained by Dr. Siegel.

(iii) Dr. Siegel’s diagnostic testing is persuasive, and his report overall carries greater weight because of the inclusion of validity testing. I find his report of clinical interview persuasive in finding that KH is functioning well psychologically despite pain complaints.

(iv) While the clinical notes and records of KH’s GP, Dr. Girgis, provide some indication of psychological difficulties, the failure of the doctor to refer her for psychological assessment or treatment persuades me that she does not have psychological injuries that would remove her from the MIG.

AWARD

20Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer has unreasonably withheld or delayed payments.

21My findings on the substantive issues effectively negate KH’s award request.

COSTS

22Rule 19.1⁷ permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

23Unifund made a request for costs, arguing that KH filing her claim without “primary source medical evidence submitted with the applicant’s submissions” constitutes unreasonable and frivolous conduct in this proceeding and has imposed “significant and unnecessary costs” on it.

24While I have found against KH on the issues in dispute, I do not read her submissions as being without any basis at all, and Unifund offers no support for the contention that a lack of “primary source medical evidence” – a term that Unifund does not define – renders a claim unreasonable, frivolous or vexatious.

25Unifund’s cost request is denied.

CONCLUSION

26KH’s appeal is denied. Her injuries are “minor” as defined by the Schedule and therefore governed by the MIG.

27KH’s award claim is denied.

28Unifund’s cost request is denied.

29There are no overdue benefit payments and therefore no interest is owing to KH.

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. 4i.e. “Pain Catastrophizing Scale”
5. 5i.e. Beck Depression Inventory II (BDI II) and Beck Anxiety Inventory, which are standard diagnostic questionnaire tests.
6. 6i.e. Reynolds Depression Screening Inventory, a standard diagnostic questionnaire test.
7. 7All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)