F.F. v. Unica Insurance Inc., 2020 CanLII 14481

Citation: F.F. v. Unica Insurance Inc., 2020 ONLAT 18-011808/AABS

Tribunal File Number: 18-011808/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:

[F.F.]

Applicant

and

Unica Insurance Company

Respondent

DECISION

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Applicant: Marc Golding, Counsel

For the Respondent: Olga Zemlinsky, Counsel

HEARD In Writing: September 16, 2019

OVERVIEW

1The applicant, [F.F.] (“applicant”) was involved in an automobile accident on October 12, 2016, and sought benefits from the respondent, Unica Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”). The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service when his claim for various medical benefits was denied by the respondent.

2The respondent contends that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”)². The applicant disagrees.

3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has already been exhausted. However, If the applicant’s position is correct, then I must address the issue of whether the medical treatment claimed is reasonable and necessary.

ISSUES TO BE DECIDED

4The issues to be decided are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3(1) of the Schedule and thus subject to a $3,500.00 treatment limit pursuant to s. 18(1)?

ii. Is the applicant entitled to medical benefits for services recommended by New Wave Health Centre for the following:

a. $2,723.44 for chiropractic services submitted in a treatment plan dated December 2, 2016 and denied on December 7, 2016?

b. $1,853.29 for chiropractic services submitted in a treatment plan dated January 19, 2017 and denied on January 27, 2017?

iii. Is the applicant entitled to a cost of examination expenses recommended by Toronto Central Diagnostics for the following:

a. $800.00 for an ultrasound submitted in a treatment plan dated May 11, 2017 and denied on May 12, 2017?

b. $2,000.00 for a psychological assessment submitted in a treatment plan dated June 22, 2017?

c. $2,000.00 for a rheumatology assessment submitted in a treatment plan dated February 9, 2017, and denied on February 17, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for psychotherapy services recommended by Toronto Central Diagnostics submitted in a treatment plan dated October 26, 2016 and denied on December 13, 2016?

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

RESULT

5I find that the applicant sustained predominantly minor injuries because of the accident. I find that he has not demonstrated, on a balance of probabilities, that he sustained psychological impairments or chronic pain as a result of the accident that would remove him from the MIG. It is therefore unnecessary to consider the reasonableness or necessity of the treatment plans or the issue of interest.

LAW AND ANALYSIS

The Minor Injury Guideline

6I find that the medical evidence establishes that the applicant suffered predominantly minor physical injuries as a result of the accident.

7A “minor injury” is defined in Section 3(1) of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. Therefore, if it is determined that the applicant’s injuries fall within the MIG, the applicant is not entitled to the higher level of benefits including attendant care benefits, and medical/rehabilitation benefits above $3,500.00. In this case, the MIG limits of $3,500.00 have been exhausted.

8Section 18(2) provides that, despite s. 18(1), the MIG limit of $3,500.00 does not apply to an insured person if his or her health practitioner determines and provides compelling evidence documented before the accident that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the Minor Injury Guideline.

9The onus is on the applicant to show that his or her injuries fall outside of the MIG³ on a balance of probabilities.

10The applicant submits that his physical injuries are not “minor injuries” as defined by the Schedule. The applicant also argues that he should be removed from the MIG because:

a. He suffers from permanent and serious impairment of important mental and psychological functions.

b. He suffers from functionally disabling and chronic pain, limited range of motion, neurological and cognitive deficits, headaches, dizziness, anxiety, depressed mood, memory issues, emotional distress, sleep deprivation, weakness, fatigue and diminished energy.

Did the Applicant Sustain Predominantly Minor Physical Injuries?

11I find that the applicant’s physical injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. As a result, the applicant is subject to the $3,500.00 MIG limit which has already been paid.

12The applicant relies on the clinical notes and records of Dr. Kaszas, the applicant’s family doctor, a report from William Hsu Chiropractic Radiological Consultation Service, and Dr. Pruzanski, a rheumatologist, to prove that he sustained various physical injuries including to his head, neck, lower back, and both knees that are not predominantly minor and therefore not within the MIG.

13The applicant consulted Dr. Kaszas for the first time on December 1, 2016 some six weeks after the accident. Dr. Kaszas noted on December 1, 2016 “New pt., he will consider if he wants to come here in the future. Needs to sign a requisition for menthal (sic) therapy. Previous fam MD died, Dr. Kohut.” Dr. Kaszas records on December 1, 2016 that “Had a car accident in October 12, 2016…Had head concussion. Left shoulder injury. Knee injury…” The applicant was not Dr. Kaszas’ patient until December 1, 2016 so Dr. Kaszas appears to be recording what the applicant said. Dr. Kaszas does not refer to any records about a head concussion. The applicant did not provide any significant evidence of a head injury post-accident or any records showing loss of consciousness, attendance at a hospital, diagnostic imaging of the brain or head injury protocol. I therefore find that the applicant did not sustain a concussion or post-concussion syndrome as a result of the accident.

14The records of Dr. Kaszas regarding the applicant’s neck, lower back and both knees contain little detail. For example, in her note of July 6, 2017, Dr. Kaszas records “Lower back was hurting. He bangged(sic) his knees. At the beginning his left was painful, now right knee is more painful. He had LS spine x ray…she(sic) got physiotherapy. He sees a physiotherapist q 3 weeks. Did not go to ER.” Dr. Kaszas did not order the applicant to have the lower spine x-ray and does not have it in her records. It is not clear from her notes whether Dr. Kaszas is referring to the October 19, 2016 test conducted by William Hsu Chiropractic Radiological Consultation Service or not. The notes of Dr. Kaszas are insufficient to prove the applicant sustained neck, lower back and/or knee injuries resulting from the accident.

15Dr. Hsu, a chiropractor, performed a test described by applicant’s counsel as an “ultrasound” of the spine. The report from William Hsu Chiropractic Radiological Consultation Service from the October 19, 2016 examination revealed degenerative disc disease, uncovertebral arthrosis, facet arthrosis along with other findings highlighting laxity, hypermobility and postural alterations. The applicant submits that this is sufficient objective evidence of spinal injuries to constitute a removal from the MIG as these injuries fall outside of the definition of “minor” as per the Schedule. However, this report does not describe the type of imaging conducted and the images are not included. Because of this lack of specificity and because of the degenerative nature of many of the spinal conditions listed resulting in insufficient evidence that these spinal conditions were caused by the accident, I give this report little weight. This report is not enough to outweigh the reports obtained by the respondent from Dr. Zarnett, an orthopaedic surgeon and Atul Kaul, an occupational therapist.

16In a report dated February 27, 2017, Dr. Pruzanski, the applicant’s rheumatologist, does not diagnose a concussion but does note that the applicant’s headaches are due to accident-related tension factors and cervicogenic factors and suggests that injury to the structures of the upper neck may induce chronic recurrent headaches. The respondent points out that Dr. Pruzanski did not provide the Acknowledgment of Expert’s Duty required by Rule 10.2 of the Tribunal’s Rules acknowledging the obligation to provide opinion evidence that is fair, objective and non-partisan. More importantly, Dr. Pruzanski’s report, including his diagnosis of chronic pain, is not supported by his own examination which was four months after the accident. At that time, the applicant had headaches 1 or 2 times per week and intermittent pain of low to moderate severity in the neck, left shoulder, lumbar spine and knees. Further, Dr. Pruzanski’s report is based in part on the report of William Hsu to which I have attributed little weight for the reasons set out above. Dr. Pruzanski’s report does not outweigh the reports of Dr. Zarnett and Atul Kaul, taken together.

17Dr. Zarnett examined the applicant on March 2, 2017 at the request of the respondent. He found normal lordosis in the cervical spine with a full range of motion without pain and with normal spinal rhythm, normal lordosis in the lumbar spine. There was minor end range discomfort but no nerve root tension signs. Dr. Zarnett diagnosed uncomplicated myofascial strains to the cervical spine, lumbar spine and contusions to the knees. The opinion of Dr. Zarnett was that the applicant sustained predominantly minor injuries and that there are no prior or concurrent conditions preventing the applicant from being treated under the MIG.

18Dr. Zarnett maintained his opinion after receiving the reports obtained by the applicant’s specialists. After receiving the reports of Dr. Belyakova and Dr. Pruzanski, Dr. Zarnett issued an orthopaedic addendum dated March 22, 2017 in which he found that Dr. Pruzanski’s physical examination was similar to his own – there was a normal range of motion of the neck and normal range of motion in the shoulders with tenderness in the left trapezial and parascapular area. Although there was tenderness in the lumbar spine, there were no neurological signs. Dr. Zarnett’s opinion that the applicant’s injuries are within the MIG was not changed by the report of Dr. Pruzanski.

19Further, Dr. Zarnett maintained his opinion again after receiving the applicant’s OHIP summary and the clinical notes and records of Dr. Kaszas and issued another orthopaedic addendum report dated July 3, 2019 confirming “there is no information to indicate that as a result of the motor vehicle accident of October 12, 2016, [F.F.] suffered anything other than uncomplicated myofascial strains to his cervical spine, lumbar spine, and contusions to his knees. Imaging, including x-rays and ultrasound have not shown any accident-related abnormalities.”

20Atul Kaul, occupational therapist, conducted an in-home occupational therapy assessment on February 2, 2017 at the request of the respondent and noted that the applicant complained of “…intermittent low back pain and headaches once a week or every 2 weeks…”

21The applicant’s physical injuries documented after the accident which can be summarized as headaches, range of motion and sprain and strain-type injuries, fall within the definition of minor injury and these injuries, considered alone, are within the definition of “minor injuries” under the Schedule and should be treated within the MIG.

22However, the applicant also submits that his mental and psychological impairments and chronic pain remove him from the MIG limits.

Does the applicant have mental and psychological impairments as a result of the accident?

23I find that the applicant has not proven on a balance of probabilities that he has sustained mental and psychological impairments as a result of the accident that would remove him from the MIG.

24Although the applicant submits that he has a history of depression and anxiety dating back to 1997, there is insufficient evidence of a pre-accident medical condition documented by a health practitioner before the accident which will prevent the applicant from achieving maximal recovery within the MIG. The applicant did not provide me with any records from Dr. Kohut, his family physician prior to the accident showing his history of pre-accident depression or anxiety or any pre-accident records documenting these diagnoses. The Decoded OHIP summary from October 2013 to October 2016 does not show any medical visits related to mental health or any diagnostic codes that would support the applicant’s submission of pre-existing history of depression and anxiety. Although the applicant submits that his father was diagnosed with depression over ten years ago, this is not proof of the applicant’s pre-accident medical condition and is not relevant here.

25Although Dr. Kaszas in her clinical note dated December 4, 2017 states that the applicant presented with post-concussion syndrome, anxiety and depression, there is insufficient evidence that the applicant sustained a concussion and post-concussion syndrome. Dr. Kaszas note dated December 1, 2016 appears to be recording what the applicant has told her – that he had a car accident on October 12, 2016 and “had head concussion…has severe anxiety attacks since the accident. He had anxiety problems before the accident…Would like to get prescribed marijuana…depression…panic attacks…” There is no evidence before me that the applicant went to the hospital or other emergency clinic for treatment of a panic attack. Dr. Kaszas does not record that she ordered any tests or prescribed marijuana or any other anti-depressant or anti-anxiety medication on December 1, 2016.

26The applicant also relies on the post-accident report dated February 15, 2017 from Dr. Belyakova, a psychologist, in support of his submission that he has a pre-existing condition of depression and anxiety for which he was prescribed various antidepressants and anti-anxiety medications. The respondent points out that Dr. Belyakova did not provide the Acknowledgment of Expert’s Duty required by Rule 10.2 of the Tribunal’s Rules acknowledging the obligation to provide opinion evidence that is fair, objective and non-partisan. More importantly, this report is insufficient to prove the application’s submission given that Dr. Belyakova also reported that the applicant overcame his pre-accident psychological difficulties and “he describes himself as a happy, social, active, and emotionally stable individual prior to the accident”.

27Dr. Murray, a psychologist, examined the applicant on February 28, 2017 at the request of the respondent. After conducting several psychometric tests, Dr. Murray concluded that there was no psychological impairment or limitations or restrictions that can be clearly and directly attributed to the accident. Dr. Murray did find endorsements on the psychometric tests that indicated substantive embellishment. Dr. Murray concluded that from a psychological perspective, the designation of being within the MIG would be appropriate for the applicant.

Does the applicant have chronic pain as a result of the accident?

28I find that the applicant has not proven on a balance of probabilities that he has sustained chronic pain as a result of the accident that would remove him from the MIG.

29Dr. Kaszas, the applicant’s family doctor, did not diagnose chronic pain or record it after performing a full physical on the applicant on September 20, 2017. She recorded “MSK: Normal. No swelling of joints. ROM normal.”

30The applicant told Atul Kaul during the in-home assessment that he used Advil for pain since the accident and has continued to smoke one gram of cannabis per day after the accident.

31As noted above, Dr. Pruzanski diagnosed chronic pain four months after the accident but by that time, the applicant had headaches 1 or 2 times per week and intermittent pain of law to moderate severity in the neck, left shoulder, lumbar spine and knees. Further, Dr. Pruzanski’s report is based in part on the report of William Hsu to which I have attributed little weight for the reasons set out above. Dr. Pruzanski’s report does not outweigh the reports of Dr. Zarnett and Atul Kaul.

32The applicant has not provided sufficient evidence to meet his burden of proof. As the applicant’s reporting of pain is not continuous, and he does not appear to be experiencing any significant functional limitations as a result of his pain, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain that justifies treatment beyond the limits of the MIG.

33The applicant urges me to follow Arruda v. Western Assurance Co.⁴ and J.(D.) v. Aviva Insurance Company⁵. Previous cases of the Tribunal or FSCO are not binding on me, These cases are not helpful here because the legal proposition that chronic pain as in Arruda, and psychological condition as in J.(D.), should exempt an applicant from the MIG are not disputed here and have been dealt with on the evidence by me. 17-002624 v. Aviva Insurance Canada is also not helpful here as the limits for medical benefits in dispute in 17-002624 has been exhausted here. The 17-002907 v. Aviva Insurance Company⁶ case is also not relevant here as the applicant’s injuries in that case were found to be not subject to the MIG, unlike in this case.

Medical Benefit: Are the treatment plans reasonable and necessary?

34Having found that I find that the applicant’s physical injuries are predominately minor injuries that fall within the MIG, that the applicant has not proven on a balance of probabilities that he has sustained psychological impairments or chronic pain as a result of the accident that would remove him from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Cost of Examinations:

35Having found that the applicant’s injuries fall within the MIG, I do not need to consider the treatment plans in dispute as the $3,500.00 limit in the MIG has been exhausted.

Interest

36As no benefits are payable, no interest is payable.

CONCLUSION

37For the reasons outlined above, I find that:

i. I find that the applicant’s injuries are predominately minor injuries that fall within the MIG as defined by the Schedule and as a result the applicant is subject to the $3,500.00 MIG limit.

ii. As the $3,500.00 limit has already been paid, the applicant is not entitled to the requested treatment or assessments, and I therefore do not need to consider whether the treatment plans in dispute are reasonable and necessary.

iii. As no benefits are payable, no interest is payable.

iv. The applicant’s claim is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (C.A.) para. 24.
4. 4FSCO A13-003926
5. 52016 (ONLAT)
6. 62018 CanLII 13153 (ONLAT)