Akayla Eagle v. Unifund Assurance Company, 2020 CanLII 94812

Citation: Eagle vs. Unifund Company, 2020 ONLAT 19-012627

Released Date: 11/04/2020

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:

Akayla Eagle

Applicant

and

Unifund Assurance Company

Respondent

DECISION AND ORDER

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Jonathan Tatner, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant ("A.E.") was involved in an automobile accident on November 30, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule"). A.E. was a passenger in a vehicle that was rear-ended while stopping at an intersection.

2The respondent ("Unifund") determined that A.E.'s injuries fall within the Minor Injury Guideline ("MIG") and, on that basis, denied her certain benefits. A.E. disagreed with this decision and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for a resolution of the dispute.

ISSUES IN DISPUTE

3I am to decide the following issues:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule? If not, then:

ii. Is the applicant entitled to receive the following medical benefits?

a) $60.80 for physiotherapy services in a treatment plan submitted on March 1, 2018?

b) $2,747.00 for physiotherapy services in a treatment plan submitted on July 3, 2018?

iii. Is the applicant entitled to payments for the cost of the following examinations?

a) $1,899.50 for a Worksite Assessment in a treatment plan submitted August 13, 2018?

b) $1,334.61 for an Attendant Care Assessment in a treatment plan submitted January 8, 2019?

c) $1,300.00 for a Functional Abilities Assessment in a treatment plan submitted September 18, 2018?

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

v. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4On a balance of probabilities, I find that A.E. sustained predominantly minor injuries as a result of the accident and is subject to treatment within the MIG. Unifund has paid over $3,500 for the treatment of A.E.'s injuries. The funding available under the MIG has been exhausted. Unifund is not liable to pay any of the benefits in dispute. Since no benefits are owing, no interest is payable.

5A.E. has not met her onus of establishing that Unifund unreasonably withheld or delayed the payment of benefits. She is not entitled to an award under Ontario Regulation 664.

EVIDENTIARY ISSUES

FAE Assessment report

6The Tribunal's March 3, 2020 Case Conference Order set a May 18, 2020 deadline for productions. In this hearing, A.E. relies on the January 25, 2018 Functional Abilities Evaluation report ("FAE Assessment report") of Dr. Marco Curico. Unifund submits that A.E. only produced this report on July 20, 2020 along with her submissions. Unifund submits that the report is not properly in evidence and asks that I disregard its contents.

7A.E. has provided no explanation for the late production of the FAE Assessment report. She did not bring a motion to request an extension of the production deadline. The Tribunal makes procedural orders to ensure fairness and to facilitate the just resolution of disputes on their merits. If I were to admit the FAE Assessment Report despite A.E.'s failure to produce it by the deadline agreed upon by the parties, Unifund would face prejudice. The late disclosure hampered its ability to know the case to be met, and to adequately respond to the issues in dispute.

8I find that the FAE Assessment is not properly in evidence. I have excluded it from the record.

Hospital records

9Unifund further submits that A.E. has failed to produce any hospital records in support of her claims. In her submissions, A.E. cites the excluded FAE Assessment report in order to refer to her hospital visit on the day of the accident. Unifund submits that any reference to hospital treatment on the day of the accident in A.E.'s submissions are improperly pleaded and should not be considered.

10A.E. made no reply submissions to address Unifund's submission on this issue. I note the absence of hospital records. However, little turns on the treatment A.E. submits she received in hospital. The purported treatment, including an injection she submits she received for pain, is routine for soft tissue injuries and does not alter the analysis of whether she suffered predominantly minor injuries as a result of the accident. I do not consider references to the treatment A.E. says she received in hospital, as it is not properly in evidence. I do not consider references to the treatment A.E. says she received in hospital, as the records from the hospital visit are not before me.

Section 44 Insurer's Examination (IE) reports

11A.E. submits that Unifund provided her with deficient Notices of Examination (NOEs) for the Section 44 Insurer's Examinations (IEs) of Dr. Eric Silver and Dr. Kelly McCutcheon. Those NOEs, A.E. submits, provided no reasons for the IEs capable of satisfying s. 44(5) of the Schedule.

12Unifund submits that A.E. never corresponded with the adjuster to complain of any confusion arising from the NOEs. She participated in the IEs without objection. Unifund submits that the NOEs were compliant with the Schedule.

13I find that the NOEs were deficient because they failed to state "the medical and any other reasons for the examination" as required by s. 44(5)(a) of the Schedule. The NOEs, enclosed with a letter dated August 29, 2019, gave no reasons, medical or otherwise, for the requested IEs.

14IEs are inherently intrusive. The requirements in s. 44(5) enable an insured person to make an informed decision about whether to pursue their claims and attend an IE or not. Dispensing with the requirement for clear, detailed reasons for an IE deprives the insured person of that ability. The Schedule does not require an insured person, who faces potentially serious consequences for failing to attend an IE, to object to a deficient NOE. The fact that A.E. attended the IEs in question does not repair the deficiency of Unifund's notices.

15The Schedule is silent on the remedy for non-compliance with s. 44(5). In certain circumstances, including those in N.M. v. Aviva Insurance Canada², the Tribunal has excluded IE reports from evidence when an insurer failed to provide reasons for requesting IEs. Depending on the facts of a case, exclusion of the resulting IE reports may be the appropriate remedy. In this case, I need not exclude the IE reports because, as my reasons will show, A.E. has not met her evidentiary onus. Even without referring to Unifund's evidence, A.E.'s claims fail because she has provided inadequate evidence in support of those claims.

ANALYSIS

Did A.E. sustain predominantly minor injuries as a result of the accident?

16Section 3(1) of the Schedule defines a "minor injury" 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".

17To be eligible for medical and rehabilitation benefits in excess of the $3,500 funding limit in the MIG, an applicant must demonstrate that her accident-related injuries are not predominantly minor. If A.E.'s injuries are not predominantly minor, she will be entitled to the claimed benefits if she can demonstrate that they are reasonable and necessary. The applicant bears the onus of establishing that her injuries fall outside the treatment limit in the MIG.³

Soft tissue injuries

18A.E. has failed to establish, on a balance of probabilities, that the injuries she sustained as a result of the accident were more than minor, soft tissue injuries and their clinically associated sequelae (or consequences).

19A.E. submits that her injuries were not minor because she had neurological, psychological and cognitive issues as a result of the accident. In addition, she submits that due to the accident she developed chronic pain. Unifund submits that A.E. has not met her onus of establishing that her injuries were not minor, and that she is therefore not entitled to treatment beyond the MIG.

20There is no evidence that A.E. sustained any neurological, psychological, or cognitive injury or impairment as a result of the accident. A.E. has also failed to establish that she suffers from pain beyond the consequences of her minor, soft tissue injuries.

21Dr. Theophilus Ampofo, A.E.'s family physician, assessed her on the day of the accident when she presented with complaints of severe low back pain and pain around the left trapezius muscle. He noted that A.E. experienced no loss of consciousness at the scene of the accident. He conducted a gross neurological exam which was normal.⁴ He recommended physiotherapy, prescribed Tylenol #2 twice a day as needed, and referred A.E. for an x-ray of the lumbosacral spine, which revealed "gentle levoscoliosis".⁵

22A.E. has made no submissions or presented any evidence to suggest that her scoliosis, or any other condition, was a pre-existing condition justifying her removal from the MIG under s. 18(2) of the Schedule.

23On January 29, 2019, A.E. saw Dr. Ampofo again with complaints of ongoing neck and low back pain. Dr. Ampofo instructed A.E. to continue with the same management of her symptoms and to follow up as needed.⁶

24The only other clinical notes and records of Dr. Ampofo related to the accident are:

i. a notation on February 16, 2018 stating:

"Called patient [...] Wants R.T.W. note – mod. duties. ("Too busy to come to office"!) Advised office visit necessary before this can be done."

ii. Entries dated May 30, 2018 and June 12, 2018 referring to the request for clinical notes and records from A.E.'s counsel.

25There is nothing in the records of Dr. Ampofo indicating that A.E. sustained anything more than minor, soft tissue injuries as a result of the accident.

26On December 5, 2017, Dr. Aliya Salayeva, Chiropractor, completed a Disability Certificate (OCF-3) on A.E.'s behalf. The accident-related injuries he identified are whiplash, soft tissue sprains and strains with associated pain, headaches, malaise and fatigue.⁷ These injuries fall within the definition of "minor injury" under the Schedule.

27An updated Disability Certificate (OCF-3) was completed by Dr. Benson Ng, Chiropractor, on May 2, 2018, identifying the same injuries listed in the first, adding "other chronic pain".⁸ A chiropractor listing "other chronic pain" in a Disability Certificate (OCF-3) is not, on its own, evidence capable of establishing that A.E. suffers from a chronic pain condition warranting removal from the MIG.

28The only other objective medical evidence A.E. has put before me is the report of Dr. L.M. Picard, Neurologist, dated October 18, 2018. Dr. Ampofo referred A.E. to Dr. Picard following a fainting spell that had followed a period of daily nausea and depressed appetite associated with some weight loss. Dr. Picard's examination of A.E.'s head and neck was negative, with no sensory abnormalities noted. A.E.'s stance and gait were normal.

29Finding no suggestion of any "primary neurogenic component" to A.E.'s fainting spells, Dr. Picard concluded that her "pressing issues relate to her gastrointestinal symptoms", opining that additional neurological investigations would not be helpful.⁹

30In conclusion, the evidence before me fails to establish, on a balance of probabilities, that A.E. suffered non-minor injuries as a result of the accident. Therefore, A.E. is not entitled to treatment beyond the MIG. Since A.E. has already exhausted the funding available to her under the MIG, Unifund is not liable to pay for any further treatment, including the benefits in dispute.

Interest

31Unifund is not liable to pay any of the benefits claimed in this application. As such, no interest is payable.

Award under Ontario Regulation 664

32Section 10 of Ontario Regulation 664 provides:

If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

33A.E. is not entitled to receive an award under Ontario Regulation 664.

34Even so, A.E. has failed to establish that Unifund unreasonably withheld or delayed the payment of benefits. Nothing in the record suggests that Unifund engaged in conduct of the malicious, arbitrary, high-handed nature A.E. suggests. She submits that there was sufficient medical evidence to substantiate her need for treatment beyond the MIG, and that by denying her treatment, Unifund caused her stress and difficulties.

35In fact, the medical evidence in support of A.E.'s claim for benefits was not sufficient. The Tribunal routinely adjudicates disputes over the adequacy of the medical evidence supporting benefit claims. Denying a benefit on this basis does not justify an award against the insurer. A.E. has presented no evidence of the "stress and difficulties" to which she refers, and she has made no submissions on how they support her request for an award.

ORDER

36A.E. is not entitled to payment for any of the benefits in dispute. No interest is payable. There is no basis for an award under Ontario Regulation 664.

37The application is dismissed.

Footnotes

1. 1Ontario Regulation 34/10.
2. 22019 CanLII 94126 (ON LAT).
3. 3Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).
4. 4Respondent's Brief, Tab 33: Clinical notes and records of Dr. T. Ampofo (dated November 30, 2017).
5. 5Respondent's Brief, Tab 33: Clinical notes and records of Dr. T. Ampofo (dated November 30, 2017).
6. 6Respondent's Brief, Tab 33: Clinical notes and records of Dr. T. Ampofo (dated January 29, 2018).
7. 7Applicant's Brief, Tab 4: Disability Certificate dated December 5, 2017.
8. 8Applicant's Brief, Tab 10: Disability Certificate dated May 2, 2018.
9. 9Applicant's Brief, Tab 2: Consultation report of Dr. L.M. Picard, dated October 18, 2018.