T.A. v. Unifund Assurance Company, 2019 CanLII 101536

Citation: T.A. vs. Unifund Assurance Company, 2019 ONLAT 18-005029/AABS

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:

T.A.

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

Appearances:

For the Appellant: Nader Fathi, Paralegal

For the Respondent: Damien Van Vroenhoven, Counsel

Heard: In Writing Hearing: May 9, 2019

OVERVIEW

1The applicant was involved in an automobile accident on August 27, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The applicant applied for three medical benefits for chiropractic and physiotherapy treatment which were denied by the respondent on the basis that the applicant’s injuries fall within the Minor Injury Guideline (MIG). The applicant claims the respondent removed him from the MIG and as he suffers from ongoing pain, chronic pain and psychological impairment, the treatment plan is reasonable and necessary.

ISSUES

3The issues¹ listed below arise from the same accident and are set out in two separate files (file 18-005029 and file 18-004035) as set out in the Orders of the case conference adjudicator are as follows:

i. Did the applicant sustain a predominantly minor injury as defined under the Minor Injury Guideline (MIG)?

ii. If the answer to issue 3a is no, then²,

a. Is the applicant entitled to receive a medical benefit for $1,765.20 for physiotherapy recommended by Pro Med Rehabilitation in a treatment plan submitted on March 22, 2018 and denied by the respondent on April 6, 2018?

b. Is the applicant entitled to a medical benefit for $2,678.81 for chiropractic treatment in a treatment plan recommended by Tasha Thararajah submitted on April 5, 2018 and denied by the respondent on April 25, 2018?

c. Is the applicant entitled to a medical benefit for $1,135.49 for physiotherapy in a treatment plan recommended by Mary Somani submitted on March 22, 2018 and denied by the respondent on April 5, 2018?

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

iv. Is either party entitled to costs?³

RESULT

4For the reasons set out below, I find that the applicant’s impairment falls within the MIG. Based on the evidence, I find MIG limits have been exhausted. As MIG limits have been exhausted, it is not necessary to consider whether the medical benefits claimed are reasonable and necessary. The claim for interest is dismissed. The respondent’s claim for costs is dismissed.

Preliminary Issue

5The respondent raised a preliminary issue⁴ and relies on Rule 9.4 of the Tribunal Rules of Practice and Procedure which states if a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, without consent of the Tribunal. The applicant was required by order to file his submissions by November 9, 2018 and did not file his submissions until November 22, 2018. The respondent requests the submissions not be allowed into evidence due to the late filing. I find the delay by the applicant in filing its submissions within the two weeks of the date specified in the order is not of a magnitude that justifies not allowing the submissions into evidence and does not demonstrate any prejudice to the respondent. The submissions as filed are allowed into evidence.

THE MINOR INJURY GUIDELINE

6The applicant claims in its submissions, that the respondent removed the applicant from MIG⁵ and maintains the treatment plans in dispute is reasonable and necessary. The respondent disputes this and states all treatment plans were denied on the basis of MIG.⁶ The denial letters and the June 27, 2018 Explanation of Benefits, I find, confirm the respondent denied the treatment plans on the basis of the MIG.

7MIG 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 defined in section 3.

8Section 18 (1) limits funding when MIG applies to $3500. Section 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. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the amount in MIG.

ANALYSIS

9The applicant’s physical pain complaints includes pain in the right shoulder, back and neck.⁷ An OCF-3⁸ completed by his treating chiropractor described the injuries sustained as a result of the accident as follows:

i. lumbar, cervical and thoracic sprain and strain

ii. right shoulder strain

iii. headaches.

10The OCF-18s⁹ for physiotherapy and chiropractic treatment describe the injuries as sprains and strains. The chiropractor notes the applicant is suffering from psychological distress and sleep disturbances. As these conditions are outside the expertise of the chiropractor, I assign these references no evidentiary value. I find the injuries listed in the OCF-3 and the OCF-18s fall within the definition of a minor injury or any clinically associated sequelae to such an injury.

11The applicant submits that his injuries prevent him from performing the activities of daily living.¹⁰ He states he is unable to work since the accident or attend school. In addition to his chronic pain, he states he experiences various pain disorders that prevent and delay the recovery of his unresolved injuries. To support these claims, the applicant refers in his submissions to the reports of the respondent’s insurer examination (“IE”) assessors, Dr. Marchuk, physiatrist, Dr. Bradbury, psychologist and Dr. Silver, general practitioner.¹¹ Dr. Silver and Dr. Bradbury were retained by the respondent to assess the applicant’s injuries and whether they fall within MIG. Dr. Marchuk assessed the applicant in respect of his claim for a non-earner benefit which is not in dispute in this hearing. The respondent maintains these reports support its position the applicant is within the MIG.¹²

12After a review of these reports I find that the injuries sustained by the applicant from the accident fall within the definition of MIG.

13Dr. Marchuk, found on examination, that the applicant's range of motion of the cervical, lumbar spine and right shoulder was active and within full limits, in all directions. The muscle strength was good, and there were no signs of complex injuries sustained relative to the accident. The injuries he concluded consisted of whiplash, a right shoulder and lumbar myofascial dysfunction. The respondent argues these injuries are consistent with injuries that fall within the MIG.¹³ Dr. Marchuk’s assessment relates to the applicant’s entitlement to a non-earner benefit, which is not in dispute in this hearing. No evidence was led by the applicant to contradict the conclusions of by Dr. Marchuk on the applicant’s physical injuries.

14The psychological report by Dr. Bradbury, assessed the applicant’s psychological condition as a result of the accident and examined whether the psychological impairment took the applicant out of the MIG. She completed an examination of the applicant and various tests. Dr. Bradbury also completed a clinical assessment and concluded the applicant did not meet the DSM-5 diagnostic criteria for any current major depressive disorder, had no form of mood disorder; PTSD, anxiety disorder, or psychological adjustment to injury disorder that can be directly attributed to the accident. Dr. Bradbury found no psychological impairment as a result of the accident.

15The applicant was also examined by Dr. Silver in June 2018. Ranges of motion of the cervical spine, the thoracolumbar and bilateral shoulder ranges of motion were full in all directions. The doctor concluded the applicant sustained uncomplicated soft tissue injuries to the neck, right shoulder, and low back and which had resolved at the date of his assessment. He concluded the injuries from a musculoskeletal perspective fell within the MIG.

16The applicant in his submissions makes reference to chronic pain.¹⁴ The OCF-18 for issue # 1 referred to a chronic pain assessment¹⁵ but no assessment for chronic pain was submitted into evidence by the applicant. No family doctor notes or records were submitted to show any visits to the family doctor and a complaint of physical pain that is chronic. I find no evidence was presented of chronic pain to take the applicant out of the MIG.

17Based on the IE assessors reports I find the impairments of the applicant are minor. No family doctor clinical notes and records or records of the treating medical clinics were submitted into evidence to dispute or contradict the findings of the IE assessors. As such, the applicant’s injuries are minor and fall within the definition of MIG.

18Although the applicant’s submissions included complaints on pain and chronic pain, he did not provide any further evidence to substantiate the claims.

PRE-EXISTING INJURY

19The applicant denies prior to the accident he had any pre-existing medical conditions. In his submissions he states that he was in excellent health prior to the subject accident and had no pain complaints prior to the accident. As such, I find the applicant does not suffer from any pre-existing conditions, which prevents him from achieving maximal recovery under the MIG and which would take him out of the MIG.

Reasonable and Necessary

20The applicant is entitled to a maximum of $3,500 for medical and rehabilitation benefits less any amounts paid. The evidence indicates the MIG limits have been exhausted. As I have found the applicant’s injuries are in the MIG, I do not need to determine whether the treatment plans are reasonable and necessary pursuant to sections 15 and 16 of the Schedule.

Interest

21Based on my finding that the applicant’s injuries are within the MIG, there are no overdue payment of benefits and accordingly, the claim for interest is dismissed.

Issue of Costs

22The respondent argues the applicant's conduct relating to scheduling a second case conference and the late filing of his submissions requiring the respondent to bring a motion to extend the filing date for its submissions warrants costs under Rule 19.6.¹⁶ The respondent seeks a cost award of $1000 for each full day at attendance at the motion, the second case conference and hearing. The applicant made no submissions on the issue of costs.

23The respondent submits that the applicant acted unreasonably by refusing to consolidate the claims at the first case conference leading to an unnecessary second case conference, in not adhering to the order for productions as contained in the Order dated August 14, 2018 and missing the deadline to file the submissions. As a result of the late filing, the respondent brought a motion on November 23, 2018 requesting an extension of time to file their submissions which was granted by the Tribunal.

24I find the respondent is not entitled to a cost award. I have no evidence to conclude the second case conference was unnecessary. As to the productions, the respondent did not outline the prejudice, if any, it sustained from the failure of the applicant to adhere to the dates for productions. Although the applicant filed the submissions late, I do not find that this amounts to behaviour that is unreasonable, frivolous, vexatious, or in bad faith to attract a cost award under Rule 19. The behaviour of the applicant did not breach any order and it did not interfere with the Tribunal’s ability to carry out a fair efficient and effective process. There is evidence of inconvenience to the respondent who had to take steps to bring a motion however, this is not evidence of prejudice. As such I do not find any grounds to award costs based on the applicant’s behaviour being unreasonable, frivolous, vexatious or in bad faith.

CONCLUSION

25The applicant’s injuries are predominately minor injuries. The claim for interest is dismissed. The respondent’s claim for costs is dismissed.

Released: August 15, 2019

Thérèse Reilly

Adjudicator

Footnotes

1. 1The applicant filed written submissions for file 18-005029 but did not file any submissions for file 18-004035. Pursuant to the Order of the Tribunal dated October 16, 2018, the Tribunal consolidated files 18-005029 and 18-004035 and ordered they be heard together. The Tribunal Case Management Officer confirmed with the applicant on June 11, 2019 that he relies on the submissions as filed.
2. 2The respondent disputes the dates which the applicant claims the treatment plans were submitted to it and denied. This information is noted but does not impact the conclusions reached in this decision.
3. 3The applicant in Part 11 of his submissions refers to this as an issue but makes no submissions on the issue.
4. 4Written submissions of the respondent, paragraph 4, 11, 38 to 41, and 47.
5. 5Written submissions of the applicant, paragraph 6.
6. 6Written submissions of the respondent, paragraph 3, 7 to 10. See also the explanation of benefits dated June 27, 2018, tab 10.
7. 7Written submissions of the applicant, paragraphs 10, 11 and 12.
8. 8OCF-3 dated September 21, 2017, written submissions of the applicant, tab C1.
9. 9OCF-18 dated March 22, 2018 for physiotherapy, tab 4 (and also at tab A1 of the applicant’s written submissions), OCF-18 dated March 27, 2018 for physiotherapy, tab 6 and OCF-18 dated March 22, 2018 for chiropractic treatment, tab 8, written submissions of the respondent.
10. 10Written submissions of the applicant, paragraph 12, with references to the following reports: Physiatry Assessment Report by Yuri Marchuk, dated November 1O, 2017, Tab C4, Psychological Assessment Report, Dr. C. Bradbury, dated May 28, 2018, Tab C2 and Section 44 Assessment report of Dr. Silver dated June 18, 2018, Tab C3.
11. 11Written submissions of the applicant, paragraphs 10, 11 and 12.
12. 12Written submissions of the respondent, paragraphs 16, 18, 19, 47 and 48.
13. 13Written submissions of the respondent, paragraphs 17 and 18.
14. 14Written submissions of the applicant, paragraph 11.
15. 15Written submissions of the applicant, paragraph 7.
16. 16Written submissions of the respondent, paragraphs 19, 57 to 62.