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:
C. Z.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Applicant: Nick Hamilton, Counsel
For the Respondent: Jonathan Tatner, Counsel
Hearing in Writing: September 17, 2018
OVERVIEW
1The applicant, C.Z., was injured in a motor vehicle accident on June 10, 2015. He was taken to the hospital by an ambulance where he was assessed and released. The applicant subsequently sought treatment from a walk-in clinic and his family physician. At the time of the accident, the applicant was working as an electrical technician. He returned to work shortly after the accident.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). To date, approximately $2,908.00 in benefits have been paid. In September 2017, the applicant submitted a treatment plan for psychological services which was denied by the respondent. The applicant subsequently submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).
3The issues in dispute are:
a) Are the applicant’s injuries predominantly minor as defined in the Schedule and subject to treatment within the Minor Injury Guideline?
b) If not, is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for psychological services recommended by [Medical and Health Services], in a treatment plan that was submitted on September 18, 2017, and denied by the respondent on September 27, 2017?
c) Is the applicant entitled to receive interest on any overdue payments?
d) Is the respondent entitled to costs for this application?
RESULT
4For reasons set out below, I find that the applicant’s injuries are predominantly minor as defined in the Schedule and subject to treatment within the Minor Injury Guideline. I also find that the applicant is not entitled to the benefits claimed and, thus, no interest is payable. I find no costs should be ordered in this case.
ANALYSIS
Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for psychological services recommended [Medical and Health Services]?
5The applicant claimed that he was still experiencing sleep related problems which impacted his mood two years post-accident and therefore required psychological treatment.
6The respondent raised two main arguments to deny the applicant’s benefits: first, the applicant’s injuries are predominantly minor; and second, the treatment plan in dispute is a duplication of an earlier one for the same service denied over two years ago, and is therefore time-barred.
a) Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
Definition of MIG and burden of proof
7The term “minor injury” is defined in s. 3(1) 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 all defined in s. 3 and collectively referred as “soft tissue injuries” in this decision. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
8The applicant has the burden of proving that his injuries fall outside of the minor injuries guideline and are not subject to the $3,500 treatment limit in s. 18 of the Schedule. Specifically, the applicant has the burden of showing that the injuries are not predominantly minor injuries as defined by the Schedule.
Analysis
9I begin by examining the injuries sustained by the applicant as a result of the accident. I note that the injuries as described in the medical reports, including those submitted by the applicant, can, by and large, be described as sprain and strain and other “soft tissue injuries”. In his application for accident benefits, the applicant described injuries in the back of his head, lower back, shoulders and right leg. The applicant argues that he should be taken out of the MIG due to the seriousness of his physical injuries. Based on the medical reports, I find the extent and nature of these physical injuries were limited. I conclude therefore that the applicant suffered “soft tissue injuries” from the accident.
10Subsection18(2) of the Schedule provides that the $3,500 MIG limit does not apply where an applicant has a pre-existing medical condition that was documented by a health practitioner before the accident that will prevent maximal recovery. However, the applicant did not provide any evidence to show that he had a pre-existing medical condition that would remove him from the application of the MIG.
11The definition of “minor injury” under the Schedule does not include any psychological or psycho-emotional impairment and the applicant relies on this ground to support his claim for benefits. The applicant submitted that within a few months of the accident, he reported symptoms of insomnia to his family doctor. The applicant was prescribed Lorazepam at his initial post-accident appointment and has continued to fill this prescription into 2018.
12In December 2015, six months after the accident, the Applicant attended [Medical and Health Services] where Dr. Ye, a psychologist, noted that the applicant sounded agitated, depressed, frustrated and anxious. The applicant reported he had difficulty sleeping which affected his concentration and mood. On September 18, 2017, Dr. Ye submitted a treatment plan in which he noted the following conditions: mixed anxiety and depressive disorder, specific (isolated) phobias, and other sleep disorders. Dr. Ye found that the applicant’s injuries impacted his ability to carry out his tasks of employment and activities of normal life, and proposed an in-depth-clinical interview to determine the presence and extent of the applicant’s psychological impairments. By a letter dated September 28, 2017, the respondent denied the treatment plan as proposed.
13Citing case law1, the respondent submitted that the onus of proof to provide medical evidence to warrant entitlement beyond the $3,500 MIG limit rests with the applicant. The applicant relied largely on a pre-screen report conducted by [Medical and Health Services] in support of his claim for benefits. The respondent submitted that the pre-screen report relied on by the applicant is weak as a supporting document.
14I have examined the pre-screen report and I agree with the respondent that as medical evidence it leaves much to be desired. To start, the pre-screening was done by phone, and not in-person. It was conducted by a social worker working under Dr. Ye, not Dr. Ye himself. The report did not refer to any review of medical documentation as part of the preparation, nor did it contain any psychological testing.
15Apart from this report, the only other medical evidence that may be used to support the applicant’s claim for psychological treatment were the clinical notes provided by his family physician, which are difficult to read at best. Even if I accept the applicant’s claim that he had spoken to his family physician about his insomnia, that alone, in my view, is insufficient to take the applicant’s injuries out of the MIG. I further note that the applicant has not been given any psychological diagnosis from any psychological professional. While Dr. Ye noted that the injuries have impacted the applicant’s ability to carry out his tasks of employment, the evidence before me – including the applicant’s employment file and income tax returns - suggests that the applicant’s employment has not been affected by the accident.
16In submitting that he is entitled to the treatment sought, the applicant argued that the insurer had unfairly denied the benefits as it has never received any medical opinion to contradict the assertion from the applicant’s medical providers and that the insurer never arranged for an Insurer Medical Examination to contradict the medical opinion of Dr. Ye.
17In reply, the respondent submitted that the applicant has access to extended health coverage through his employment and can obtain an assessment and/or psychological treatment that way, and therefore there is no obligation on the respondent to fund an assessment, as he has psychological treatment available from other insurers.
18I do not find the applicant’s argument persuasive, but not for the reason cited by the respondent.
19Section 15 of the Schedule states that insurers shall pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.
20The insurer is entitled to make a determination as to whether a treatment or assessment plan is reasonable and necessary based on the information provided by the claimant. The burden is on the claimant to prove that he or she is entitled to the claim sought. The claimant’s assertion, without any evidentiary support, is not sufficient to meet the burden of proof.
21Further, s. 47(2) of the Schedule allows for non-payment if “payment is reasonably available” through another insurance plan that the claimant has access to. An insurer can deny the treatment even if a claimant fails to apply for the collateral coverage.
22In this case, the applicant simply has not discharged the requisite burden to show that his injuries fall outside of the MIG and that the treatment plan proposed is reasonable and necessary.
23For these reasons, I therefore find that the applicant’s injuries are predominantly minor as defined in the Schedule and subject to treatment within the Minor Injury Guideline. To date, $2,908 has been issued under the applicable $3,500 MIG cap. As such, the plan in dispute exceeds the remaining balance. I also find the proposed treatment is not reasonable and necessary in light of the insufficient evidence with respect to the applicant’s psychiatric conditions and diagnosis. I thus find the applicant not entitled to the $2,200 for psychological services.
b) Is the applicant’s claim for benefits time barred?
24The finding that the applicant’s injuries are predominantly minor is sufficient to deny the benefits claimed by the applicant. As such, it is unnecessary to address whether the claim for benefits is time barred. However, this issue is raised by the respondent as part of the basis for its cost claim. I will address this issue in the discussion of costs below.
Is the applicant entitled to interest for the overdue payment of benefits?
25In view of my findings above, the applicant is not entitled to interest as there are no overdue payments owing.
Is the respondent entitled to costs?
26The respondent seeks its costs of the dispute pursuant to s. 17.1 of the Statutory Powers and Procedures Act (“SPPA”) and Rule 19 of the Tribunal Rules. Relying on Rule 19.1 of the Tribunal Rules and s.17.1 of the SPPA, the respondent submitted that the Tribunal may make an order for costs where a party has acted unreasonably, frivolously, vexatiously, or in bad faith.
27The respondent submitted that in having initiated the present dispute, without any reasonable basis for meeting the requisite eligibility tests for the claimed benefits, the applicant has acted unreasonably and frivolously and in turn, the respondent has been forced to incur significant and unnecessary costs.
28While given the opportunity to do so, the applicant did not submit any reply to the respondent’s submission.
29The respondent argued that the treatment plan under dispute is identical to the one submitted by the applicant on December 10, 2015 in all aspects except for the amount. The 2015 plan was also proposed by Dr. Ye of [Medical and Health Services] for psychological assessment, and it was also based on the pre-screen assessment dated June 12, 2015. The 2015 plan was for $2,000.00, versus the $2,200.00 for the plan under dispute. The respondent noted that the 2015 plan has not been the subject of an application to this Tribunal, and by submitting the same plan for $200 more, the respondent submitted that the applicant is attempting to evade the limitation period rules set out by the Schedule, under which the applicant would have had until December 21, 2017 to dispute the 2015 plan.
30I have reviewed the two plans and while they are very similar, they are not identical. There is no evidence before me to suggest that the applicant submitted the second application deliberately to circumvent the time limitation provided in the Schedule. I therefore reject the respondent’s argument that the present application represents an attempt by the applicant to evade the limitation period.
31While I have found against the applicant, there is insufficient ground to say the applicant has acted in bad faith. There is some, albeit limited, evidence of non-physical issues experienced by the applicant since the accident including but not limited to insomnia. He has sought treatment from his own physician to address these issues, and has been prescribed with Lorazepam.
32For these reasons, I deny the respondent’s claim for costs.
FINDING and ORDER
33The applicant’s injuries are predominantly minor as defined in the Schedule and subject to the $3,500 MIG treatment limit contained in s. 18 of the Schedule. The applicant’s application for a medical benefit in the amount of $2,200.00 for psychological services is dismissed. The applicant is not entitled to interest. No costs are awarded.
Released: March 5, 2019
Avvy Go
Adjudicator