R.C. v. Unifund Assurance Company, 2019 CanLII 101710

R.C. v. Unifund Assurance Company

Citation: R.C. vs. Unifund Assurance Company, 2019 ONLAT 18-006698/AABS

Tribunal File Number: 18-006698/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:

R.C. Applicant

and

Unifund Assurance Company Respondent

DECISION

PANEL: Brian Norris, Adjudicator

APPEARANCES:

For the Applicant: Neisha Moses, Paralegal

For the Respondent: Ken Yip, Counsel

HEARD In writing on: March 25, 2019

OVERVIEW

1The applicant was injured in an automobile accident on April 12, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").

2The respondent determined the applicant's injuries fell within the Minor Injury Guideline (MIG) and, on that basis, refused to pay for certain medical benefits. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

1. Are the applicant's injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500.00 funding limit as set out in s. 18 of the Schedule?
2. Is the applicant entitled to receive a medical benefit in the amount of $1,762.50 for physiotherapy treatment recommended by Focus Physiotherapy in a treatment plan dated July 27, 2017?
3. Is the applicant entitled to receive a medical benefit in the amount of $981.25 for physiotherapy treatment recommended by Focus Physiotherapy in a treatment plan dated January 2, 2018?
4. Is the applicant entitled to interest on overdue payments?

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit.

5The treatment plan dated July 27, 2017 is not reasonable and necessary. The treatment plan dated January 2, 2018 is payable pursuant to section 40(4), subject to the $3,500.00 funding limit.

6The applicant is not entitled to any interest.

BACKGROUND

7The applicant was the driver of a vehicle which was struck on the front driver's side by a turning vehicle. Later the same day, the applicant went to the hospital and was told to take over-the-counter pain relief mediation and discharged with a recommendation to follow up with a family physician. The applicant's family physician diagnosed whiplash and referred the applicant to physiotherapy.

8Following the accident, the applicant commenced treatment pursuant to the MIG. The applicant now seeks a finding the injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.

THE MINOR INJURY GUIDELINE

9There is a monetary limit to medical benefits available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s. 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10If the applicant's injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

11In this case, the applicant submits the MIG and its funding limit should not apply because of the applicant's chronic neck, back, and shoulder pain. To this end, the applicant relies on the clinical notes and records ("CNRs") of Dr. R. Zafar, family physician, along with a letter from Dr. Zafar dated November 16, 2018 ("the letter"), stating the applicant has chronic pain. The applicant also claims an inability to recover within the MIG and submits the MIG should not apply.

12The respondent disagrees and submits the applicant may have intermittent pain, but that this pain is sequelae of soft tissue injuries and the applicant does not meet any of the criteria for chronic pain as described in the American Medical Association Guides. Further, the respondent argues the pain does not prohibit the applicant from engaging in pre-accident activities.

13I have reviewed the submissions and evidence and find that the applicant's injuries as a result of the accident are predominantly minor injuries, fall within the MIG, and, therefore, are subject to the $3,500.00 funding limit. My reasons are as follows.

Chronic Pain

14On my view of the evidence, the applicant's pain is intermittent and sequelae of the soft tissue injuries suffered as a result of the accident. This pain does not meet the threshold for removal from the MIG.

15I acknowledge the applicant's complaints of pain following the accident. However, the intermittent pain is predominantly described as discomfort and does not substantially impact the applicant's functionality. The IE assessment report by Dr. S. Sharma, physician, dated April 24, 2018 found the applicant had range of motion within normal limits in the upper and lower extremities as well as the cervical and lumbosacral spine. Dr. Sharma also reported the applicant's pain was intermittent, did not prevent the applicant from working or completing activities of daily living and self care, and does not meet the definition of chronic pain syndrome according to the American Medical Association Guides. Dr. Sharma's report indicates an improvement of the applicant's condition within the past year. Previously, the IE assessment report by Dr. D. Mula, physician, dated April 24, 2017 found the applicant's neck, shoulders, and back were tender to palpation and mildly decreased range of motion in the same areas. However, Dr. Mula found the applicant's injuries were predominantly minor.

16The CNRs and letter from the applicant's family physician, Dr. R. Zafar, do not outweigh the opinion of Dr. Sharma, who is a specialist in chronic pain syndrome. Dr. Sharma conduced an in-person assessment of the applicant and found the applicant did not have a chronic pain condition.

17To the contrary, Dr. Zafar's CNRs evidence intermittent back pain, not a chronic pain condition. While these records include some complaints of back pain, Dr. Zafar makes no recommendation that the applicant seek the help of a specialist or to change the course of treatment. Throughout the totality of Dr. Zafar's CNRs, I see only four treatment recommendations for accident-related injuries;

1. April 20, 2016: Engage in physiotherapy;
2. November 15, 2016: Engage in massage therapy;
3. November 28, 2016: Continue with massage therapy, hot pool therapy, and stretching exercises; and
4. September 11, 2017: Referral for a back x-ray, results were unremarkable;

18These four recommendations are not indicative of the course of care for someone with a chronic pain condition. Nevertheless, Dr. Zafar's CNRs also include a letter to counsel for the applicant dated November 16, 2018. The letter states the applicant has chronic pain which impacts the applicant's activities, causing psychological distress. For the following reasons, I find the letter less persuasive than Dr. Sharma's report.

19Dr. Zafar's letter was written at the request of the applicant's counsel. As a result, Dr. Zafar has strayed from the role of an objective medical specialist. Contrary to the letter, there is no evidence to corroborate Dr. Zafar's opinion that the applicant's pain is causing psychological distress – the applicant has not complained of any psychological symptomology and was never referred for any form of psychological investigation or treatment. Likewise, the impact of pain on the applicant's activity is minimal, if any, and the applicant's claims contradict the applicant's reported activity. For example, the applicant reported to Dr. Zafar an inability to lift and bathe two young children yet returned to not only a 50-hour work-week following the accident, but also to playing hockey and working out at the gym. Lastly, the letter implies the applicant has not reached a level of reasonable functional recovery, again an opinion that appears unreliable given the applicant's activity I just noted.

THE DISPUTED TREATMENT PLANS

20I have found the applicant's injuries as a result of the accident are minor in nature and fall within the MIG. The treatment plan dated July 27, 2017 in the amount of $1,762.50 is not reasonable and necessary because, as indicated on page 2 of the treatment plan, it proposes treatment outside the MIG framework.

21The treatment plan dated January 2, 2018 in the amount of $981.25, proposes treatment within the MIG framework. I find this treatment plan reasonable and necessary considering the applicant is subject to the MIG and has lingering back discomfort. Pursuant to section 40(4), the goods and services in this treatment plan are payable once incurred and properly invoiced, subject to the $3,500.00 funding limit provided by section 18(1). There is no evidence or submissions which indicate the applicant has incurred any of the goods and services proposed in this treatment plan. Therefore, no payments went overdue and no interest is payable.

CONCLUSION

22Based on the medical evidence before me, I find that the applicant's injuries as a result of the accident fall within the MIG and the applicant is subject to the funding limit prescribed in the MIG.

23The treatment plan dated July 27, 2017 is not reasonable and necessary. The treatment plan dated January 2, 2018 is payable pursuant to section 40(4), subject to the $3,500.00 funding limit.

24No interest is owed.