Date: 2018-07-20

Tribunal File Number: 17-007052/AABS

Case Name: 17-007052 v Unica Insurance Inc.

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

Unica Insurance Inc.

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Sergio Grillone, Counsel

For the Respondent: Angela Comella, Counsel

Heard in Writing: June 18, 2018

OVERVIEW

1[The applicant] was involved in an automobile accident on December 14, 2013 and sought accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal (the “Tribunal”) when her claim was denied by Unica.

PRELIMINARY ISSUE

2Unica has raised a preliminary issue that could prevent the Tribunal from hearing this appeal. It asserts that the applicant is “statute barred” (explained below) from appealing its refusal to pay attendant care benefits ACBs, because she failed to commence her appeal within two years of the date that her claim for benefits was denied as required by s. 56 of the Schedule.

SUBSTANTIVE ISSUES

3The issues before me are:

(1) Has [the applicant] sustained a catastrophic (“CAT”) impairment as defined by the Schedule?

(2) If not statute-barred, is the applicant entitled to payment for an attendant care benefit in the amount of $1,408.66 per month, from December 21, 2015 to date and ongoing?

(3) Is the applicant entitled to a medical benefit in the amount of $2,713.24 for a treatment plan for chiropractic treatment recommended by Essential Physio and Rehab denied by the respondent on November 4, 2015?

(4) Is the applicant entitled to an examination expense in the amount of $1,996.25 for a chronic pain assessment recommended by Essential Physio and Rehab denied by the respondent on November 25, 2015?

(5) Is the applicant entitled to a housekeeping and home maintenance benefit in the amount of $100.00 per week, from March 17, 2017 to date and ongoing?

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

FINDINGS

4I find that [the applicant]’s appeal with respect to ACB’s is statute barred. Her ACB claim is accordingly dismissed.

5[The applicant] has not proven that she is CAT impaired. Her appeal is denied. As a result, her claim for housekeeping and home maintenance benefits is dismissed.

6[The applicant]’s claim for chiropractic treatment is denied.

7[The applicant]’s claim for chronic pain assessment is denied.

8There are no overdue payments and therefore no interest payable on overdue benefits.

REASONS

Preliminary Issue: Is LT’s ACB claim statute-barred?

9Under s.56 of the Schedule, an appeal of an insurer’s denial of a benefit must be commenced within two years after the insurer’s refusal to pay the amount claimed. The two years is called the “limitation period”.

10If an appeal is not filed within the two-year limitation period prescribed by s. 56, then the Tribunal cannot hear it. The appeal is said to be “statute barred.”

11The ACB dispute was solely about the amount payable, not entitlement or eligibility. Unica reduced [the applicant]’s ACB payments to $563.03 per month, and provided her an explanation of benefits (EOB) dated August 7, 2015. The EOB explained the reasons for the reduction: there is no suggestion from [the applicant] that the EOB was deficient in any way.

12Unica argues that [the applicant]’s limitation period on the ACB issue began on the date of the EOB -- August 7, 2017.

13Unica discontinued [the applicant]’s ACB payments on December 24, 2017 because, under s.20(2) of the Schedule,² ACBs cease being payable for expenses incurred more than 104 weeks after the accident. Section 20(3) makes exception for persons who are CAT impaired, but Unica denies that LT is CAT impaired.

14[The applicant] commenced her appeal with the Tribunal on October 18, 2017. Her position is that the two-year limitation period in her case “does not run from the date any decision had been made, rather, from the time of CAT designation”. In effect, LT claims that her limitation began on March 17, 2017, the date on which Unica denied her CAT application. She offers no explanation of or basis for this assertion.

15I find that [the applicant]’s claim for ACBs is statute-barred because:

i. The ACB dispute is solely about the amount of ACB payments. There was no denial of eligibility or entitlement at the time of the EOB. Unica’s EOB is clear, unequivocal and provided [the applicant] the opportunity to appeal on time. I agree with Unica that the limitation period for LT’s appeal of the amount of ACB payable expired on August 7, 2017.

ii. I find no basis for the implied proposition of [the applicant] that applying for a CAT determination revives an expired appeal on ACB quantum.

16I note also that having found that [the applicant] has not proven that she is CAT impaired (see below), I would also find that her entitlement to ACB’s ended on December 14, 2017, because at the time of the accident, s.20 of the Schedule limited ACB payments to non-CAT claimants to a period of two years from the accident.

17As a result of my determination with respect to the preliminary issue, it is unnecessary for me to address the substantive merits of [the applicant]’s claim for ACBs.

Should [the applicant]’s Limitation Period for ACBs be extended?

18Under s.7 of the Licence Appeal Tribunal Act³ (“the LAT Act”) the Tribunal may extend the time for filing an appeal of a denial of benefits beyond the legislated limitation period if it is satisfied that there are reasonable grounds for doing so.

19There are four factors that may be considered in determining whether an extension of limitation period should be granted:

(1) The existence of a bona fide intention to appeal within the appeal period;

(2) The length of the delay;

(3) Prejudice to either party, and

(4) The merits of the appeal⁴

20These four factors act as a guideline – they are not elements that must be met before an extension can be granted, but they act as a guideline to determining the just decision in each case.⁵

21[The applicant] did not address this discretionary provision in her submissions.

22My reading of [the applicant]’s evidence does not persuade me that she had a bona fide intention to file her claim within the limitation period. She received a clear and unequivocal explanation of ACBs, a denial that clearly focused on the amount payable, and I find was sufficient to trigger an appeal. I do not find it credible that she was waiting for almost two years, until her application for CAT determination was denied, to decide whether to appeal Unica’s decision on the amount of her ACB entitlement.

23My reading of [the applicant]’s submissions on ACBs does not indicate a strong case, on the merits, for an adjustment to the amount payable for ACBs during the two years in which she was eligible. Her failure to address Unica’s submissions with respect to a lack proof of ACB expenses actually incurred⁶ further diminishes the merits of her appeal.

24I find that [the applicant] does not meet the criteria for an extension of the limitation period under s.7 of the LAT Act.

Catastrophic Impairment

25CAT impairment is defined by s.3.1(1) of the Schedule, and paragraph 8, which is the criterion relied on by [the applicant], addresses mental or behavioural disorder. A person is CAT impaired if he or she is found to have a “marked” impairment in domains of function that preclude useful functioning, in accordance with the AMA Guides.⁷ This is referred to as “criterion 8”.

26[The applicant] submits that she is entitled to CAT designation because she meets the definition of “marked psychological impairment” in four domains set out in the AMA Guides:

(1) Activities of Daily Living (ADLs)

(2) Social functioning

(3) Concentration

(4) Adaptation

27To rebut [the applicant]’s claim, Unica relies on its catastrophic impairment assessments (CIAs) outlined in an executive report dated March 7, 2017 by Dr. Paitlich of Core Integrated Health Resources. Unica had four CIAs conducted on March 3, 2017, including in-home occupational therapy, neurology, orthopedic and psychiatric.

28The psychiatric CIA, conducted by Dr. Kiraly, included an in-person assessment of [the applicant], psychological testing and a review of relevant documentation including the above-referenced OT assessment. Dr. Kiraly concluded:

i. [The applicant] has psychological impairments, but they do not cross the threshold into CAT impairment.

ii. [The applicant] has impairment in each of the four areas of functioning at the “moderate” level – not at the “marked” level. This falls short of the level of impairment defined as catastrophic.

iii. [The applicant] had a Global Assessment of Functioning (GAF) score of 52 – similar to the score of 55, assessed by [the applicant]’s treating psychiatrist, Dr. Rudky.

29Unica submits that its evidence should be assigned more weight than [the applicant]’s report from Dr. Jerry Cooper, psychiatrist, dated April 19, 2018 because:

i. Dr. Cooper conducted no psychological testing to support his findings.

ii. Dr. Cooper does not discuss in specific terms each of the four areas of function, or how he concluded that [the applicant] meets the “marked impairment” threshold. His conclusions are unsupported with analysis.

iii. Dr. Cooper assigns scores for physical impairments, without explaining how he arrived at them.⁸

30LT argues that Dr. Kiraly’s report is flawed because her scores on psychological tests indicate serious/severe psychological conditions, which are inconsistent with Dr. Kiraly’s findings of moderate impairment. I find [the applicant]’s argument fails because:

i. She offers no expert analysis or opinion in support of the contention that high diagnostic test scores mandate CAT impairment findings. Without such evidence, I cannot draw a link between diagnostic test results and their impact on assessments of functional impairment. CAT impairment criterion 8 is explicitly defined in functional terms.

ii. Her own expert, Dr. Cooper, does not appear to assign great weight to psychological testing as a means to determining CAT impairment. I find it inconsistent for [the applicant] to suggest that I find psychological test scores determinative in this case, while ignoring Unica’s concerns about the lack of such testing in her own evidence.

31I find that Unica’s evidence is more persuasive than [the applicant]’s evidence.

i. Dr. Kiraly’s report is well-explained and supported by empirical evidence. My reading of Dr. Cooper’s report substantiates Unica’s criticisms, and I assign that report less probative value.

ii. The collection of clinical notes and records, progress reports and other documents from various practitioners do not form a cohesive and convincing case for CAT impairment. They illustrate ongoing psychological complaints, none of which are contested, and make some references to impacts on [the applicant]’s functioning, but do not prove CAT impairment.

32My findings on the evidence lead me to conclude that [the applicant] has not met the onus on her to prove that she is CAT impaired. Her appeal on this issue is denied.

Chiropractic Treatment Plan

33I was unable to find any evidence or argument in either parties’ submissions with which to assess this claim. The treatment plan was not included in the submissions.

34The onus is on [the applicant] to prove that a claimed treatment plan is reasonable and necessary.

35There being no evidence placed before me, I find that [the applicant] has failed to prove her entitlement to the benefit claimed.

36[The applicant]’s appeal on this issue is denied

Chronic Pain Assessment

37To support this claim, [the applicant] submitted a number of reports and CNRs from various treating medical professionals that note ongoing pain and in some cases cite “chronic pain”. Much of her submission consists of extracts from these documents. I note that a neurology report dated May 7, 2015 by Dr. Viachislav Prigozhikh recommends a multidisciplinary chronic pain program.

38Unica relies on the IE by Dr. Armitage, physiatrist, dated January 8, 2016, in which the doctor found that the proposed treatment plan was not reasonable or necessary. Dr. Armitage opines that the proposed plan did not provide for any particular pain management. He went on to recommend alternative strategies for dealing with [the applicant]’s complaints, including topical medication, fitness training and consultation with a psychiatrist.

39Unica also states that [the applicant] has simply failed to adduce specific evidence to demonstrate why this treatment plan is reasonable and necessary.

40I find that [the applicant] has failed to meet the onus on her to prove that the proposed chronic pain assessment is reasonable and necessary, because:

i. Her submissions provide no analysis on the benefits of further assessment; in my view a simple series of extracts from reports and records is insufficient to establish the need for the proposed assessment.

ii. Given the extensive chronicle of treatment and assessment already undergone by [the applicant], it is unclear to me how or why the proposed assessment plan would improve her well-being.

iii. I am persuaded by the IE report from Dr. Armitage that the proposed assessment plan lacks sufficient rigor on the issue of pain management, and am further persuaded by the report’s recommendations on alternative approaches.

Housekeeping and Home Maintenance Benefit

41Section 23 of the Schedule limits payment of this benefit to persons who are CAT impaired.

42Because I have concluded that [the applicant] has not met the onus on her to prove that she is CAT impaired, LT is ineligible for this benefit. Her appeal on this issue is denied.

Request for Interest

43Section 51 of the Schedule prescribes the criteria for assessing and awarding interest on overdue payments.

44As none of the claimed benefits is payable, no interest is due.

CONCLUSIONS

45[The applicant]’s appeal on ACBs is statute-barred because her appeal was filed after the limitation period for appeals prescribed by s.56 of the Schedule expired. Her appeal on ACBs is dismissed.

46[The applicant] has not proven that she is CAT impaired. Her appeal on the issue of CAT determination is denied. As a result, [the applicant]’s claim for housekeeping benefits is denied.

47[The applicant]’s claim for chiropractic treatment is denied.

48[The applicant]’s claim for a chronic pain assessment is denied.

49There are no overdue payments and therefore no interest due.

Footnotes

1. 1O.Reg. 34/10
2. 2The Schedule as it was in 2013 when the accident occurred. It has since been amended.
3. 3S.O. 1990, c.12
4. 4A.F. and North Blenheim Mutual Insurance Co. & N.L. and North Blenheim Mutual Insurance Co., 2017 CanLII 87446 (ON LAT) see also Howard v. Martin 2014 ONCA 309
5. 5North Blenheim – see above, footnote 4
6. 6As required by s.3(7)e and s.19(1) of the Schedule
7. 7i.e. the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993.
8. 8Such scores are relevant because physical and psychological impairment scores can be added together to arrive at an assessment of whole person (i.e. overall) impairment; this in turn may qualify a person for CAT impairment rating and entitlement.