R.F. v. Unifund Assurance Company, 2019 CanLII 110075

Citation: R.F. vs. Unifund Assurance Company, 2019 ONLAT 18-007571/AABS

Tribunal File Number: 18-007571/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits

Between:

R.F.

Applicant

and

Unifund Assurance Company

Respondent

DECISION

PANEL:

Craig Mazerolle, Adjudicator

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Lora Castellucci, Counsel

Heard:

In Writing: April 29, 2019

OVERVIEW

1The applicant was injured in a motor vehicle accident on August 19, 2016. To assist in her recovery, she applied for medical benefits payable under the Statutory Accident Benefits Schedule (the “Schedule”).¹ Since the respondent determined that her injuries fell within the Minor Injury Guideline (the “MIG”), it declined to pay for this treatment.

2For the reasons to follow, I find the applicant is entitled to receive these disputed medical benefits.

ISSUES

3The medical benefits at issue are two treatment plans from Activa Clinics for physiotherapy services (dated November 4, 2016 and January 27, 2017). The applicant is also requesting interest on any overdue payments of benefits.

ANALYSIS

4Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.

5In the present case, the applicant also has the onus of demonstrating that her injuries do not fall within the MIG. That is, if an insured person has only suffered a “minor injury” as a result of an accident, s. 18(1) places a $3,500.00 limit on the treatment that she or he can request from an insurer.

6The main means of removal is when an insured person can demonstrate that he or she has sustained an impairment that is not “predominantly a minor injury”. A “minor injury” is defined in the Schedule as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. This definition does not include psychological impairments.

7The applicant submitted that her injuries are not predominately a “minor injury” because she suffers from a psychological impairment and a concussion as a result of the accident. Additionally, the applicant had injured her left shoulder days before the accident, and this injury worsened as a result of the accident.

8The respondent contended that there is insufficient evidence to support any of the applicant’s alleged impairments. Further, the respondent claimed that the applicant has been inconsistent in reporting her employment status, such that all of her self-reported evidence should be treated with suspicion. Finally, the respondent submitted that her current medical condition is better explained by considering a subsequent accident she was involved in on August 21, 2017.

9The respondent also asked the Tribunal to disregard the handwritten notes of the applicant’s family physician, Dr. Hamdy, on account that they are “illegible”. I, too, find these notes to be illegible, and, since the applicant chose not to address this issue in her reply, I will not be considering these notes in my decision.

Psychological Impairment

10I find the applicant has provided sufficient evidence to support her claim that she suffered from an accident-related, psychological impairment.

11During a visit to a walk-in clinic on February 23, 2017, the applicant was diagnosed with anxiety and prescribed medications to address this concern. Support for this diagnosis included the applicant reporting “Stress, anxiety”, and that “she is not doing well” since the accident.

12The applicant also provided the Tribunal with Dr. Romeo Vitelli’s “pre-screen report” from April 13, 2017. Even though it is missing important procedural information (e.g., how long it took to conduct the interview), the report does reproduce the Psychological Symptoms Checklist she completed a few months before. I place a fair bit of weight on this checklist, as the applicant endorsed a number of serious psychological and cognitive issues, including suicidal ideation and persistent sadness.

13Finally, the applicant’s prescription summary suggests that she purchased medications to address her psychological distress following the accident (though no further prescriptions were filled after August 28, 2017), and there are brief references to psychological distress in the two Disability Certificates completed before August 21, 2017.

14Save for the medications that were purchased on August 28, 2017, all of these records predate the subsequent motor vehicle accident on August 21, 2017 that the respondent put forward as an alternative explanation of the applicant’s medical condition.

15Taken together, while there is some conflicting evidence, I still find that she has demonstrated the existence of an accident-related, psychological impairment on a balance of probabilities.

16The respondent did suggest that the applicant’s self-reported evidence should be seen with suspicion, due to alleged inconsistencies in her employment history. However, I do not put much weight on this argument, as the totality of her self-reported symptoms all work together to corroborate the claim that the accident left her with a psychological impairment. Additionally, the prescriptions she filled adds credence to these self-reported statements.

17Finally, the respondent cited the Tribunal’s decision in 17-001265 v. Waterloo Insurance² to support its position that the applicant has not demonstrated a psychological impairment. Specifically, the respondent argued that both Waterloo and the present case possess “no evidence of any diagnostic testing… and there was no formal psychological diagnosis.” Since the applicant was held to the funding limits of s. 18(1) in Waterloo, the same should apply in the current matter.

18I do not find Waterloo to be analogous to this case. First, while the adjudicator had concerns about the lack of evidence from medical professionals with psychological credentials, I have the report from Dr. Vitelli, who is a psychologist. Second, as noted above, the prescription summary helps bolster the applicant’s self-reported symptoms. While extensive testing would have been of greater assistance than this summary, I still find that there is enough evidence to conclude a psychological impairment exists.

19Either way, while a decision from the Tribunal is always persuasive to my analysis, I must judge each set of facts on its own merits.

Physiotherapy Treatment Plans

20Following her removal from the funding limits of s. 18(1), I also conclude that she is entitled to the physiotherapy services proposed in the treatment plans.

21The applicant submitted that both of these treatment plans have been endorsed by medical professionals as being reasonable and necessary. Further, pain relief has been found in the case law to be “a legitimate medical and rehabilitative goal”, such that treatments which only promote pain relief (as opposed to recovery) can still be reasonable and necessary. Therefore, considering the progress she has made to date, continued physical treatment is needed.

22The respondent contested the need for further treatment by claiming that the proposed services are “excessive”. It also reiterated its concerns about the applicant’s credibility.

23In the records I was provided from Activa Brampton (which detailed the 15 sessions of physical therapy she received from November 9, 2016 to May 15, 2017), the applicant consistently reported physical pain. The records also indicate that the practitioners who performed these therapies generally noted that the applicant’s condition was “[p]rogressing as expected” throughout this period. Once again, all of these visits predate the August 21, 2017 accident.

24The Activa Brampton records, therefore, show that not only was the applicant consistently receiving physical treatment following the accident, but that this treatment was helping her recovery.

25I would also note that, during the same walk-in clinic visit where she was diagnosed with anxiety (i.e., on February 23, 2017), the practitioner suggested she receive physiotherapy. Additionally, the applicant reported to the respondent’s musculoskeletal assessor, Dr. Nikolaos Harmantas, that this treatment was somewhat helpful.

26Taken together, I find that these treatment plans are reasonable and necessary to assist the applicant in recovering from her accident-related impairments. As such, she has demonstrated her entitlement to the disputed treatment plans.

CONCLUSION

27The applicant has demonstrated that she should not be held to the funding and treatment limits under s. 18(1). She has also demonstrated that the proposed treatment plans are reasonable and necessary.

28She is entitled to interest in accordance with s. 51 of the Schedule.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 22017 CanLII 87150 (“Waterloo”).