Tribunal File Number: 17-008686/AABS
Case Name: 17-008686 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.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES:
Applicant’s Counsel: David Derfel
Respondent’s Counsel: Ken Yip
HEARD in Writing: July 3, 2018
OVERVIEW
1The applicant K.H. was involved in an automobile accident on May 12, 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.
2The respondent denied the applicant’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”). 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 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 the applicant sustain predominantly minor injuries as defined by the Schedule? Is her 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 KH entitled to receive a medical benefit for physiotherapy, in the amount of $3,728.29, that was recommended by the Canadian Back Institute in a treatment plan submitted to the respondent on June 27, 2017 and denied on June 30, 2017?
(2) Is KH entitled to interest on the overdue payment of benefits?
RESULT
7KH’s appeal is dismissed. There are no overdue payments and therefore no interest owing to OG.
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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.
9The onus is on the applicant to show that her injuries fall outside of the MIG3
Did the applicant sustain predominantly minor physical injuries?
10KH acknowledges that the physical injuries she sustained as a result of the accident are predominantly minor.
11KH submits that she should be removed from the MIG because she has a pre-existing condition.
Pre-existing Condition
12Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.4
13The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.
14KH submits that she has pre-existing condition of scoliosis of the upper thoracic spine, identified in an X-ray dated October 11, 2017. She states that she was unaware of this condition before the accident, but “that it would appear that [her] ongoing back pain can be attributed to this condition, requiring treatment outside of the MIG.”
15KH fails to meet the test for establishing a pre-existing condition that would remove her from the MIG, because:
i. She acknowledges that her condition was not documented – indeed it was undetected – before the accident.
ii. Her submissions contain no evidence whatsoever that her scoliosis, described as very mild, would prevent maximal recovery within the MIG limit. I note that in the OCF-18 at issue the checkbox in Part 7 for pre-existing condition is marked “no” by the person who prepared it.
16Unifund conducted insurer’s examinations with KH. None of the IE assessors found any evidence of a pre-existing condition that would remove her from the MIG.5 KH did not contest or criticize the IE reports submitted by Unifund. I accept Unifund’s evidence as persuasive on this question.
Chronic Pain
17KH’s submissions do not expressly state that she seeks exemption from the MIG; however, they do reference ongoing pain complains and Unifund has chosen to address this issue. In order to ensure that KH’s appeal is fully considered, I will address it too.
18KH’s evidence simply does not support a finding of chronic pain because she provides no analysis, and there is none in her medical report, on the severity, frequency and duration of her pain or on the functional impacts of her pain complaints. The medical records of her family physician, Dr. Nadeem, indicate that despite frequent visits, KH did not have any accident-related complaints from June 2015 to July 2017, when CBI submitted the disputed treatment plan. A single reference to “Chronic MVA” in the disputed treatment plan, without any analysis, is simply unpersuasive.
19I am satisfied that KH’s submissions do not contain evidence of chronic pain sufficient for me to find that she should be removed from the MIG.
CONCLUSION
20KH’s appeal is denied.
21There are no overdue benefit payments and therefore no interest is owing to KH.
Released: July 30, 2018
_________________________________
Christopher A. Ferguson, Adjudicator
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.
- Dr. David Mula, GP, IE Report dated October 6, 2017 and addendum IE Report dated April 16, 2018 (after reviewing KH’s X-ray); Dr. Sekyi-Otu, orthopedic surgeon, IE Report dated November 13, 2015.