P.R. v. Unifund Assurance Company, 2020 CanLII 47273

Citation: P.R. vs. Unifund Assurance Company, 2020 ONLAT 19-005741/AABS

Released Date: 07/09/2020

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:

P.R.

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Ilia Estrah

For the Respondent:

Damien Van Vroenhoven

HEARD:

Via written submissions

OVERVIEW

1P.R. was injured in an accident on March 9, 2017, and sought various benefits from the respondent, Unifund, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Unifund denied the medical and rehabilitation benefits in dispute here on the basis that P.R. sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”) and that the assessments were not reasonable and necessary as a result. P.R. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to a medical benefit in the amount of $3,416.68 for psychological treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on August 10, 2017, and denied by the respondent on August 16, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $3,948.91 for physiotherapy services recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on August 18, 2017, and denied by the respondent on August 21, 2017?

iv. Is the applicant entitled to payment for the cost of an examination in the amount of $1,920.53 for a psychological assessment, recommended by Inline Rehabilitation Centre Inc., in a treatment plan submitted on June 22, 2017, and denied by the respondent on June 28, 2017?

v. Is the applicant entitled to payment for the cost of an examination in the amount of $2,000.00 for a chronic pain assessment, recommended by Downsview Healthcare Inc., in a treatment plan submitted on September 11, 2018, and denied by the respondent on September 20, 2018?

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

result

3I find P.R. has not satisfied his onus to prove that his accident-related impairments warrant treatment beyond the MIG. Accordingly, I find none of the treatment and assessment plans are reasonable and necessary.

ANALYSIS

Applicability of the MIG

4The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500, although an applicant may escape the MIG if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG. Prior decisions of this Tribunal have found that an applicant may also escape the MIG based on psychological impairments or chronic pain. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. I find P.R. has not satisfied his burden to prove that his accident-related impairments—alleged to be chronic pain and psychological impairments—warrant treatment beyond the MIG.

5P.R. submits that his chronic pain and psychological impairments warrant removal from the MIG. To that end, he relies on the following to support his claim: a Disability Certificate (OCF-3) dated March 29, 2017 identifying various sprain and strain-type injuries, nervous, sleep disorders, PTSD symptomology and malaise and fatigue; a psychological assessment report dated July 31, 2017 diagnosing him with Specific Phobia, Situational (Driving and Passenger Related) and Adjustment Disorder with Depressed Mood; a Chronic Pain Assessment report dated October 24, 2018 diagnosing P.R. with chronic pain; treatment records from Inline Rehabilitation Centre and the clinical notes of his family physician, Dr. Kharonsky.

6The clinical notes of the family physician Dr. Kharonsky are not particularly helpful to P.R. Indeed, there are only two visits between the date of the accident and this hearing. The first visit on April 11, 2017 references the accident. Oddly, it notes chronic pain despite only four weeks elapsing since the accident and P.R. self-reporting the pain as 3/10. Dr. Kharonsky prescribes resting, stretching, Tylenol and massage. The other visit was not until February 1, 2018 and there is no mention of the accident, of chronic pain (or any pain for that matter) or a psychological or emotional impairment causing functional impairment or affecting his day to day activities. On this note, and contrary to P.R.’s submissions otherwise, it appears P.R. was in a rather positive place 10 months post-accident and six months following his psychological diagnosis: he had lost weight after starting a new diet, had reduced his alcohol consumption, his physical examination was normal, and he and his wife were trying to conceive. Where there are no other contemporaneous notes between April 11, 2017 and February 1, 2018 (or thereafter) to speak to P.R.’s allegedly reduced function as a result of his psychological impairments or chronic pain, I find it difficult to accept that P.R.’s accident-related impairments require removal from the MIG.

7On review of the medical documentation before the Tribunal and despite a diagnoses of an Adjustment Disorder, I find there is limited evidence that P.R.’s psychological impairments warrant removal from the MIG based on the psychological report before the Tribunal. Admittedly, I struggled to reconcile the ultimate diagnosis with the results of the testing and initially thought P.R. had submitted the s. 44 report mistakenly. Indeed, in the pain profile testing, P.R. demonstrated the following: “considerably fewer symptoms of depression than the average pain patient”, “his scores suggest that he does not have many problems with his sleep patterns, energy level, appetite or affect”; his anxiety score was “below average for the pain patient sample”; his somatization scores revealed “less concern than most pain patients” and indicate “he is not preoccupied with his physical problems, which he may perceive as temporary or as a relatively minor inconvenience.” In the two Beck tests administered, P.R.’s score revealed “minimal levels of depression” and “minimal levels of anxiety.” While I am alive to P.R.’s self-reporting, on the objective testing evidence and in the absence of evidence of complaints elsewhere, I find it difficult to accept that he is struggling to adjust post-accident or that he has developed psychological symptoms that are affecting his daily life, as alleged.

8The report also diagnosed a specific driving phobia. While his driving anxiety test results revealed “slight driving and riding avoidance behaviour” he also demonstrated “minimal accident-related concerns” and, notably, continued to drive and ride as a passenger post-accident and continues to do so despite the report diagnosing a specific phobia of same. While P.R. self-reported that his pain continues to interfere with his sleep, ability to concentrate and his appetite, in the pain testing administered, the results indicated that P.R. “does not perceive pain as a significant problem that affects his activities and daily living” and that he “does not exaggerate the impact of pain on his life.” The report then concedes that there is “a discrepancy between the self-report and the psychometric outcomes” but then chalks the discrepancy up to “potential language barriers” despite the same report indicating that P.R. is fluent in English, Russian and Hebrew and the fact there was no interpreter present for the assessment or for any of the other assessments in evidence.

9P.R. submits that the symptoms he self-reports to various assessors—stress, increased conflict with his spouse, problems sleeping and fatigue—are the type of psychological impairments that warrant removal from the MIG. While self-reporting is important and does provide valuable insight into psychological and emotional issues, it must be accompanied by objective evidence of some kind to demonstrate why maximal medical recovery is prevented. Where there is no discussion with his family physician about psychological or emotional struggles, where he continues to drive and ride in a vehicle as a passenger, where the objective testing revealed minimal depression, anxiety and pain concerns, where he has not continued treatment on his own or by referral and where the s. 44 report/addendum of Dr. McCutcheon found P.R.’s complaints to be sub-clinical with no need for psychological intervention, I find P.R. has not demonstrated that his psychological impairments warrant treatment beyond the MIG.

10P.R. also submits that his diagnosis of chronic pain justifies removal from the MIG because of the duration of his pain, his consistent reporting and his continued attendance for treatment in the year post-accident. An applicant may escape the MIG where there is evidence of functional impairment caused by consistently severe or debilitating pain as a result of the accident. As evidence of his chronic pain, P.R. relies on Dr. Wilderman’s report that diagnosed him with chronic pain in October 2018.

11With great respect, I find it likely that P.R. experienced some pain post-accident and may have some lingering pain when performing certain motions in the months that followed and perhaps even to date. However, I find that his pain is not chronic pain justifying removal from the MIG where it only occurs with physical exertion and at a moderate severity, as various reports indicate, as P.R. self-assessed his pain as 4/10 and sometimes at 6/10. The OCF-3 identifies largely sprain and strain-type injuries that fall squarely within the definition of minor injury under the Schedule. While it is true that P.R. reported his back pain and leg pain to Dr. Kharonsky one-month post-accident (but only rated it as 3/10 at that time) there are no other complaints to his family physician in the months and years that followed. In a similar vein, his prescription summary and OHIP records reveal no accident-related codes.

12Instead, P.R. began to attend for chiropractic, massage and physiotherapy treatment at Inline Rehabilitation. On the records, it appears he attended approximately once per week between the date of the accident and November 2017, which aligns with his submission that he attended regularly. Notably, however, the records indicate that he only attended for treatment four more times between November 30, 2017 and January 11, 2018 when the treatment records stop. The chronic pain diagnosis of Dr. Wilderman does not come until October 2018. With the exception of Dr. Kharonsky’s February 2018 note that did not mention the accident or any pain, there is no indication P.R. continued to seek treatment or what his alleged functional impairments were in this period of time prior to Dr. Wilderman’s assessment.

13I find Dr. Wilderman’s report, in contrast, to be somewhat dramatic on the facts and not supported by the evidence in the file. I note that the only medical files reviewed by Dr. WIlderman were the OCF-3 and the two clinical notes from Dr. Kharonsky, both of which were addressed above.

14The only listed complaint in the report is low back pain, which P.R. rates at 4/10. On the Pain Disability Index, P.R. scores 18/60, in the moderate impairment range for home, social and occupation function, in the mild range for sleep function and with no impairment in his self-function. Despite P.R. being self-employed and returning to work almost immediately after the accident, Dr. Wilderman states that his accident-related pain makes him less marketable, “affects his earning capabilities, financial status and employment plans.” Despite the test results, Dr. Wilderman finds that P.R. is “substantially unable to perform the housekeeping and home maintenance he performed prior to the accident” even though the physical examination was largely normal. Despite there being no evidence that P.R.’s accident-related impairments or pain is severe—by either self-reporting or objective testing—Dr. Wilderman finds that he “sustained a serious impairment” and that the degree of his functional limitations is “serious as it interferes with a substantial amount of his pre-accident activities of daily living” particularly his employment and “severe pain.” In contrast, P.R. reported to Dr. McCutcheon that he only has back pain with physical exertion, that he has not had any issues with focus, attention or concentration, that his business is doing fine and that his wife did most of the housework pre-accident.

15I also prefer the s. 44 report of Dr. Marchuk, which found no evidence of a physical impairment warranting removal from the MIG, over the report of Dr. Wilderman, as I find it more proportional to the medical evidence before the Tribunal. Dr. Marchuk’s addendum opinion was unchanged after reviewing Dr. Wilderman’s report. Even I were to afford Dr. Wilderman’s report more weight, P.R. has still not demonstrated that his pain causes functional impairment, as he self-reports to various assessors that he returned to work, that he is able to complete his personal care activities, continues to drive, stopped attending for treatment in January 2018, has not reported any issues to his family physician, is not actively taking pain medications and, other than sleep, reports minimal change with his day to day life or work activities. There was no evidence provided that P.R.’s life has changed from a functional perspective or that recovery from his accident-related impairments is prevented if he is kept within the MIG, which is his burden to prove.

16As a result, I find the lack of medical evidence supporting his complaints, the fact that P.R. has not demonstrated functional impairment or debilitating pain and that P.R. has not demonstrated why the MIG prevents his maximal medical recovery, I am not prepared to accept that his chronic pain or psychological diagnoses warrant removal from the MIG at this time.

Are the costs of examination reasonable and necessary?

17On the evidence, P.R. only has $200 remaining under the MIG limits. As he has submitted four treatment and assessment plans that all exceed the remaining funds available to him, I find that none of the disputed benefits are payable as P.R. is properly within the MIG and has not demonstrated that his accident-related impairments warrant treatment beyond the $3,500 cap.

CONCLUSION

18P.R. remains in the MIG and is not entitled to payment for any of treatment and assessment plans in dispute.