DV v. Unifund Assurance Company, 2018 CanLII 95560

DV v. Unifund Assurance Company

Date: 2018-06-21 Tribunal File Number: 17-006637/AABS Case Name: 17-006637 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:

DV Applicant

and

Unifund Assurance Company Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

Counsel for the Applicant: Rohan Haté Counsel for the Respondent: Ken Yip

Heard In Writing: May 28, 2018

OVERVIEW

1DV (“the applicant”) was involved in an automobile accident on November 5, 2014, and sought accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal (the “Tribunal”) when her claim was denied by Unifund (“the respondent”).

2The respondent denied the applicant’s claims because it determined that all of his 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 exactly the opposite.

3If 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

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:

1. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,868.08.00 for medical services, recommended by Physiotherapy First, in a treatment plan (OCF-18) submitted on September 28, 2015, and denied on October 6, 2015?

2. Is the applicant entitled to interest on any overdue payment of benefits?

FINDINGS

6I find that the applicant’s injuries are predominately minor. His entitlement to benefits is governed by the MIG. His application is dismissed.

7There is no interest on overdue payment of benefits due.

REASONS

The Minor Injury Guideline

8Section 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 injury.” It also defines what these terms for injuries mean. Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

9The onus is on the applicant to show that her injuries fall outside of the MIG.³

10There is no persuasive evidence that the applicant’s physical injuries were anything but predominantly minor. The medical evidence in both submissions points to soft-tissue injuries.

11I find the report of Dr. Joseph Kwok, orthopedic surgeon, dated February 13, 2018, to be of limited persuasive value because it was based on an assessment performed three years after the accident, and failed to discuss subsequent injuries in the applicant’s medical history that might raise questions about causation.

12However, the applicant argues that he should be removed from the MIG because he suffers from chronic pain as a result of the accident.

Does the applicant suffer from chronic pain as a result of the accident?

13The parties agree that chronic pain may remove an applicant from the MIG. But the chronic pain must be a result of the accident.

14Section 14 of the Schedule provides that an insurer is liable to pay medical benefits to an insured person who sustains an impairment as the result of an accident.

15Similarly, s.15 provides that medical benefits must pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.

16In its arguments, the respondent has raised unresolved doubts about the causation of some of the injuries the applicant claims as accident-related, and which he says are linked to his pain complaints – injuries sometimes acknowledged but never investigated or explained by any of his medical assessors. These were:

i. A shoulder dislocation that occurred in August 2016, diagnosed by ultrasound imaging reported on the applicant’s decoded OHIP summary.

ii. L4-L5 disc bulging, identified in a CT scan April 15, 2015, which the applicant asserts were caused by the accident but which the medical evidence describes as degenerative in origin.

iii. The assessment by Dr. Kwok is limited as persuasive evidence because of its assertion, without discussion of the above noted medical issues, and a second accident, in 2015, that all of the applicant’s pain complaints were “directly attributable” to the accident.

iv. The diagnoses of the applicant’s physiotherapy provider, Ms. Dhir and Physiotherapy First are similarly unpersuasive for the same reasons, that is, the untested assumption that all of the applicant’s pain problems arose from injuries caused by the accident.

17I note that the issues around causation, all of which were argued by the respondent, were not addressed by the applicant, who chose not to submit a Reply in this matter.

18I find that the applicant has not met the onus on him to prove that he suffers from chronic pain as a result of the accident.

Request for Interest

19Section 51 of the Schedule prescribes the criteria for assessing and awarding interest on overdue payments.

20In this case, the applicant is not entitled to interest on denied claims, because no payment is due from the insurer.

CONCLUSIONS

21The applicant has not proven that his injuries fall outside the MIG.

22It is unnecessary for me to address the claimed treatment and assessment plan.

23There are no overdue payments and therefore no interest is owed to the applicant.

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 at para 24