[F.J.H.] v. Unica Insurance Inc., 2019 CanLII 101739

Citation: [F.J.H.] vs. Unica Insurance Inc., 2019 ONLAT 18-008249/AABS

Date: September 16, 2019

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:

[F.J.H.]

Appellant(s)

and

Unica Insurance Inc.

Respondent

DECISION

PANEL:

Chloe Lester, Adjudicator

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Angela Comella, Counsel

HEARD:

In Writing on: May 6, 2019

OVERVIEW

1The applicant was injured in an automobile accident on February 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 refused to pay for certain medical benefits. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES

3The disputed claims in this hearing are:

a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

b. Is the applicant entitled to a medical benefit in the amount of $1,553.76 for chiropractic treatment recommended by VCare Rehabilitation Centre in a treatment plan dated July 2, 2016?

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

RESULT

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

5The applicant is not entitled to the disputed treatment plan.

6The applicant is not entitled to any interest.

BACKGROUND

7The applicant was rear-ended by another vehicle and as a result alleges that he sustained physical and psychological injuries, including dizziness, neck, shoulder, and back pain.

8The applicant initiated a claim for accident benefits and the respondent characterized the applicant’s injuries as falling within the MIG. The respondent refused to pay for the disputed chiropractic treatment plan because the applicant has consumed all $3,500.00 of funding allocated under the MIG.

THE MINOR INJURY GUIDELINE

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10To request treatment above the $3,500.00 funding limit, the applicant must prove on the balance of probabilities that his injuries do not fall within the definition of minor injury in section 3 of the Schedule. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

11The applicant argues that he should not be subject to the MIG because not only does he have pre-existing conditions that prevents maximal recovery within the MIG funding limits, but also because he has been diagnosed with conditions that do not fit within the definition of a minor injury, namely chronic pain and post-traumatic stress disorder (“PTSD”).

THE APPLICANT’S PRE-EXISTING INJURIES

12The applicant argues that he had the following pre-existing conditions:

a. Neck, shoulder, back and knee pain; and

b. Poor sleep.

13The respondent argues the applicant must provide compelling evidence to show that his pre-existing conditions prevent him from achieving maximal recovery within MIG limits.¹

14I agree and the applicant has failed to do so. The onus is on the applicant to prove he is out of the MIG. The applicant relies on the medical evidence of his family doctor, his treating rehabilitation facility, and a prescription summary. Neither one of his health practitioners took the position that his pre-existing conditions prevented the applicant from achieving maximal recovery within the MIG. The prescription summary is not enough on its own to support his position the injuries are not minor.

15The family doctor records show the applicant complained of neck, shoulder and knee pain from 2006 until 2014. His other main concerns during that period and thereafter were regarding his sleep issues and that he frequently had to take medication to get to sleep. After the accident, the applicant complained of worsening sleep issues and back pain but he felt it was related to carrying heavy tires. About a year after the accident, the applicant complained of pain in his neck, shoulder and back to his family doctor, but it was not attributed to the accident. About two and a half years later, the applicant complained of neck pain relating to an accident that occurred approximately 6 months earlier (an accident that is not the subject of this hearing). The doctor was not sure the pain was related to the second car accident.

16VCare Rehabilitation Centre, the applicant’s treating facility, indicated in the second treatment plan that the applicant’s prior postural alteration and deconditioning could affect his response to treatment. However, by the last treatment plan, the doctor at VCare Rehabilitation Centre indicated that it was unknown whether the applicant had a pre-existing condition that would affect the response to treatment. The doctor indicated that there might be conditions affecting the applicant’s response to treatment by checking off a box, which is not enough to meet the requirement of compelling evidence.

17The applicant continued to suffer from sleep issues that was later diagnosed as sleep apnea, and it may have worsened after the car accident. I fail to see how this, or any other pre-existing condition prevented the applicant from achieving maximal recovery within the MIG or how it is related to the car accident at issue. The applicant has not provided compelling evidence to prove the pre-existing conditions prevent him from achieving maximal recovery within the MIG limits.

THE APPLICANT’S POST-ACCIDENT INJURIES

18The applicant was diagnosed by his treating chiropractor with the following injuries as a result of the accident:

a. Strain and sprain of the lumbar, shoulder girdle, ribs, sternum, and ankle;

b. Injury of muscle and tendon at neck level;

c. Tension-type headaches;

d. Vertigo of central origin;

e. Non-organic sleep disorders;

f. Phobic anxiety disorder; and

g. Radiculopathy.

19The applicant claims he was diagnosed with chronic pain and PTSD and those diagnoses would not fall within the definition of having minor injuries. However, the treatment plans and disability certificates submitted to the respondent do not list chronic pain or PTSD as an accident related injury. Also, the applicant’s family doctor does not diagnose the applicant with chronic pain or attribute any of his pain complaints to the accident. The chiropractor lists some psychological disorders as the applicant’s car accident injuries, but a chiropractor is not capable of diagnosing psychological impairments. I do not have a diagnosis from a medical professional qualified in diagnosing psychological impairments. Therefore, I have no evidence to suggest the applicant was diagnosed with chronic pain or PTSD as a result of the accident.

20The applicant was diagnosed with radiculopathy by his treating chiropractor. This diagnosis may not fit within the definition of having a minor injury. The respondent does acknowledge that the applicant tested positively for radiculopathy after a Spurling test was conducted but then this was followed by a negative finding. The respondent does not feel the applicant’s diagnosis of radiculopathy would render the applicant out of the MIG. I agree. There was no mention of radiculopathy by the family doctor who was seeing the applicant during this time, there were no referrals made for future investigation and the positive finding was followed by a negative finding. So even though the applicant was diagnosed with radiculopathy, it only seemed to be present for a short period of time and should not have affected the applicant’s recovery within the MIG. There is no compelling evidence that the radiculopathy prevented the applicant from achieving maximal recovery.

THE DISPUTED TREATMENT PLAN

21The applicant relies on numerous cases² to support his position that the treatment plan is reasonable and necessary and that the respondent failed to write a proper denial. The applicant argues that:

a. the respondent has an ongoing responsibility to assess the applicant as new information becomes available;

b. the respondent has a duty to treat an applicant fairly and reasonably; and

c. chronic pain is pain that persists beyond the normal healing time and pain relief is a legitimate goal.

22The applicant relies on section 38(11) of the Schedule to argue that the respondent is precluded from taking the position the applicant is in the MIG because they failed to give a proper denial letter.

23The Schedule under section 38(8) and (9) obligates the respondent to respond to the requested treatment plan within 10 business days and if they are going to deny it, the respondent must provide the medical and other reasons why they do not agree to pay for it and whether the MIG applies. The applicant argues the respondent failed to provide medical or any other reasons for the denial.

24The respondent argues their denial of the chiropractic treatment plan was proper, the applicant’s medical records were taken into consideration, and their opinion stayed the same that the applicant’s injuries are minor.

25The respondent sent the applicant two letters relating to the treatment plan in question. The first one dated July 8, 2016 was written in accordance with section 38(10) which provides that when an insurance company believes the MIG applies, the notice under section 38(8) may ask the applicant to attend an insurer’s examination. The letter responded to the treatment plan within 10 business days, indicated they believed the MIG applied and asked the applicant to attend an examination. After the respondent received the results of the examination, the respondent sent the applicant a letter dated September 6, 2016, in accordance with section 38(8), denying the treatment plan on the basis that the applicant sustained soft tissue injuries as a result of the accident, the injuries are considered minor, there was no evidence that the applicant had a pre-existing condition that would prevent maximal recovery within MIG limits, and indicating their position that the applicant’s injuries fall within the MIG. I find that the respondent honored all requirements as set out in section 38 and the denial of the treatment plan is proper.

26I have found the applicant’s injuries fall within the MIG. The applicant has consumed all of the $3,500.00 funding provided by the MIG. Considering this, an analysis on entitlement to the disputed treatment plan is unnecessary.

INTEREST

27The applicant claims entitlement to interest on any overdue payments pursuant to section 51 of the Schedule.

28The disputed treatment plan is not payable because the applicant has reached the treatment $3,500 funding limit provided by the MIG. No payments went overdue and no interest is owed as a result.

CONCLUSION

29Based 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.

30The disputed treatment plan is not payable because the applicant has reached the funding limit provided by the MIG.

31No interest is owed.

Footnotes

1. 116-000642 v. Wawanesa Mutual Insurance Company, 2016 CanLII 93132 (ON LAT)
2. 2Smith v. Cooperators General Insurance Co., 2002 SCC 30; Al-Shimasawi and Wawanesa Mutual Insurance Company, FSCO A05B002737 2007-05-11; Ali and Ferozuddin and Certas Direct Insurance Company, FSCO A13-002459 and A13-002460 2016-03-23; Viola and General Accident, FSCO A98-000670 1999-08-20; Thangarasa and Gore Mutual, FSCO A02B001360 2005-08-09