A.K. v. Unifund Assurance Company
Tribunal File Number: 19-000966/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:
A.K. Applicant
and
Unifund Assurance Company Respondent
DECISION
ADJUDICATOR: Brian Norris, Adjudicator
APPEARANCES:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Mikhail Shloznikov, Counsel
HEARD: In Writing on September 16, 2019
OVERVIEW
1The applicant was injured in an automobile accident on December 25, 2017 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. As a result, 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:
(i) Has the applicant sustained predominantly minor injuries as defined under the Schedule?
(ii) Is the applicant entitled to a medical benefit in the amount of $1,215.32 for physiotherapy treatment recommended by Maxwell Physiotherapy in a treatment plan dated January 3, 2019?
(iii) Is the applicant entitled to a medical benefit in the amount of $2,219.74 for psychological assessment recommended by Assurance Medical in a treatment plan dated April 10, 2019?
(iv) Is the applicant entitled to interest on any overdue payment of benefits?
(v) Is the applicant entitled to an award pursuant to section 10 of Ontario Regulation 664?
RESULT
4The applicant sustained predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit.
5The applicant is not entitled to the disputed treatment plans, interest, or an award.
BACKGROUND
6The applicant was the driver of a vehicle which, while making a left turn, struck the front end of an oncoming vehicle. The applicant did not go to the hospital immediately following the accident but met Dr. S. Nada-Rajah, family physician, a few weeks later. The applicant reports Dr. Nada-Rajah assessed him and prescribed cyclobenzaprine and recommended physiotherapy. He then commenced physiotherapy with Maxwell Physiotherapy & Rehab Inc, pursuant to the MIG.
7The applicant claims ongoing chronic back pain and psychological injuries and submits they are not included in the MIG. As a result, he infers the $3,500.00 funding limit should not apply and claims entitlement to the disputed treatment plans.
THE MINOR INJURY GUIDELINE
8The 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 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. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9If an insurer deems an applicant's injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
10I have reviewed the evidence and submissions and find the applicant has sustained predominantly minor injuries as defined by the schedule. As a result, he is subject to the $3,500.00 funding limit provided by section 18. He is not entitled to the disputed treatment plans as they propose treatment outside the MIG and the $3,500.00 funding limit.
Psychological Injuries
11The applicant claims psychological injuries as a result of the accident. He submits his regular interests such as enjoying time with his family, playing sports, and attending other social events have been severely affected. The respondent submits the applicant has failed to provide any evidence to show he suffered psychological injuries as a result of the accident. I agree.
12The applicant has failed to provide any compelling evidence to support his claim that he suffered psychological injuries as a result of the accident. Only two pages of Dr. Nada-Rajah's clinical notes and records ("CNRs") were submitted for review. They are virtually illegible and are devoid of any reference to psychological symptoms. Likewise, the applicant only provided two pages of CNRs from Maxwell Physiotherapy and they too are devoid any compelling evidence of a psychological injuries. The Maxwell Physiotherapy CNRs consist of one page of scheduled appointments and a one-page assessment document. The only indication of a psychological injury in these records is that the unknown author checked "yes" to indicate the applicant's sleep was disturbed. This is not compelling evidence of a psychological injury.
13The psychological assessment treatment plan is uncompelling because there is no other evidence to support the claims made in it. Without providing any supplemental notes or documents to support it, the plan states the applicant is experiencing sleep difficulty, vehicular phobia, depression, feelings of anxiety, withdrawal from social events, and marked changes in libido. There is no evidence Dr. M. Singh, psychologist, or anyone else, met with or interviewed the applicant to determine the provisional opinion presented in the proposed treatment plan. A treatment and assessment plan, absent any corroborating evidence to support it, is not reasonable and necessary.
14The available evidence concludes the applicant suffered soft tissue injuries only. The IE of Dr. R. Lubbers, psychologist, dated March 25, 2019, found the applicant's presentation was absent any overt accident-related psychological/emotional concerns. Dr. Lubbers conducted psychometric testing and concluded the applicant presented "a largely normal, non-psychopathological response to the accident events and current circumstances" and found no need for psychological treatment.
15The applicant's submissions fail to impeach Dr. Lubber's findings in the IE and addendum. The applicant submits Dr. Lubber misstated the time passed since the accident and acknowledged the applicant's psychological injuries. Throughout the report, Dr. Lubbers refers to the correct date of the accident and misstating the time passed since the accident does not detract from Dr. Lubber's findings. Dr. Lubbers conducted a clinical interview and found the applicant did not reveal the presence of a clinically significant anxiety disorder or report symptoms associated with a clinically significant mood disorder, posttraumatic stress disorder, or a specific phobia.
Chronic Pain
16The applicant suggests he suffers from a chronic pain condition and submits his claim is similar to 17-006328 v Unifund Assurance Company1 ("17-006328"). He claims he regularly sees his family physician to voice ongoing injuries and impairments and attended physiotherapy to help maintain employment. The respondent maintains the applicant provides no evidence of anything other than minor injuries. I agree.
17I find the applicant has failed to provide evidence demonstrating he suffers from a chronic pain condition. The two pages of Dr. Nada-Rajah's CNRs are mostly illegible and show only one visit following the accident. Likewise, the two pages of CNRs from Maxwell Physiotherapy make no reference to ongoing pain or pain which impacts the applicant's functionality. The applicant claims to have required modifications at work to accommodate his injuries but provides no evidence of this: there are no workplace records and no prescription or letter from a health care provider recommending modified duties, hours, or otherwise.
Pre-existing Injuries
18The applicant infers his pre-existing injuries were not addressed in the insurer's examinations reports and submits the report of Dr. R. Lam, physician, dated February 8, 2019 should be discounted for this reason. The respondent disagrees and submits the applicant reported an unremarkable past medical history to Dr. Lam in the February 8, 2019 report. Further, the respondent submits Dr. Lam's addendum report dated March 25, 2019 included a review of the applicant's medical records but maintained the position that the applicant suffered predominantly minor injuries and there was no pre-existing condition that would preclude his recovery. I agree.
19The applicant has failed to provide any evidence of a pre-existing medical condition that would preclude his recovery within the MIG. As noted previously, the family physicians CNRs are illegible and unhelpful. The CNRs from Maxwell Physiotherapy are absent any information about the applicant's medical history. The x-ray report dated April 21, 2016 was unremarkable and found no evidence of degenerative disc disease, arthritis, spondylolysis, spondylolisthesis, or evidence of a previous injury in the lumbar spine, sacrum, or coccyx.
20Considering the evidence before me, and for the reasons above, I find the applicant suffered predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit provided by section 18 of the Schedule.
STATUTORY ENTITLEMENT TO THE DISPUTED TREATMENT PLANS
21The applicant claims the respondent failed to comply with section 38 of the Schedule when it denied entitlement to the disputed treatment plans. He submits the respondent failed to provide a medical opinion in the denials and failed to address the medical evidence provided to them. The respondent disagrees and submits it complied with section 38 and submits both Dr. Lam and Dr. Lubbers reviewed Dr. Nada-Rajah's CNRs. I agree.
22I find the denial dated January 9, 2019 to be compliant with section 38 of the Schedule. The letter clearly and unequivocally denies the treatment plan dated January 3, 2019. It gives a medical reason for the denial by noting there is no evidence of injuries which fall outside the minor injury definition, no evidence of a pre-existing injury that would preclude his recovery, and that it believes the MIG (and the $3,500.00 funding limit) applies.
23I find the denial dated April 17, 2019 to be compliant with section 38 of the Schedule. The letter clearly and unequivocally denies the treatment plan dated March 20, 2019 and was delivered within ten business days after the treatment plan was received on April 10, 2019. In addition to the language used in the January 9, 2019 letter, the April 17, 2019 letter also refers to the March 25, 2019 psychological IE.
24The respondent properly addressed the applicant's medical evidence. Although it is not a requirement under section 38 of the Schedule, Dr. Lubbers' IE and Dr. Lam's addendum report include reference to the records submitted by the applicant. The Lubbers report dated March 25, 2019 states Dr. Nada-Rajah's CNRs were reviewed as part of it. The Lam addendum dated March 25, 2019 concluded the additional documents did not alter the opinions and conclusions in the initial report.
INTEREST AND AN AWARD
25Pursuant to section 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. The disputed treatment plans are not payable because the applicant is subject to the MIG and the plans propose treatment outside of the MIG. The applicant is not entitled to interest as a result.
26Pursuant to section 10 of O. Reg. 664, the applicant is only entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit. The applicant is not entitled to an award because none of the withheld benefits were considered payable. Thus, no award is payable as a result.
CONCLUSION
27Upon review of the submissions and medical evidence, I find that the applicant's injuries as a result of the accident are predominantly minor injuries and fall within the MIG. Considering this, I find the applicant is subject to the funding limit prescribed by section 18 of the Schedule.
28The disputed treatment plans are not payable because the plans propose treatment outside the MIG.
29No interest is owed and no award is payable.
Released: April 3, 2020
___________________________
Brian Norris Adjudicator