Davidenko v. Unifund Assurance Company, 2021 CanLII 13189

Davidenko v. Unifund Assurance Company

Citation: Davidenko vs. Unifund Assurance Company, 2021 ONLAT 19-008994

Released: January 18, 2021

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:

Davidenko Applicant

and

Unifund Assurance Company Respondent

Decision

Adjudicator: Avril A. Farlam

Appearances:

For the Applicant: Anton Serikov; Paralegal

For the Respondent: Geoffrey Keating, Counsel

Heard: By way of written submissions

Overview

1Mr. Davidenko ("applicant"), was involved in an automobile accident on February 1, 2017 ("accident") and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹ The applicant was 50 years of age at the time of the accident. The applicant was denied certain benefits by Unifund Assurance Company ("respondent") and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

2The respondent submits that 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 and the monetary limit of $3,500.00. The monetary limit of the MIG has already been exhausted. The respondent also submits that, even if the MIG is found not applicable, the applicant has not provided sufficient evidence that the disputed treatment plans are reasonable and necessary.

3The applicant submits that his injuries are beyond the scope of the MIG because he suffered a concussion in the accident and suffers from chronic pain syndrome.

Issues

4The issues to be decided in this hearing are:

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 $2,237.38 for physiotherapy recommended by Newmarket Health and Wellness, in a treatment plan (OCF-18) submitted on September 28, 2017 and denied on October 4, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $3,980.61 for physiotherapy recommended by Newmarket Health and Wellness, in a treatment plan (OCF-18) submitted on December 28 28, 2018 and denied on January 4, 2019?

iv. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for neurological assessment recommended by Imperial Medical Assessment, in a treatment and assessment plan (OCF-18) submitted on October 13, 2017 and denied on October 20, 2017?

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

Result

5The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit which has already been exhausted. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is owed.

Law

The Minor Injury Guideline

6The MIG establishes a treatment framework available to an injured person who sustains a "minor injury" as a result of an accident. A "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". Under section 18(1) of the Schedule, injuries that are defined as a "minor injury" are subject to a $3,500.00 funding limit on treatment.

7To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of "minor injury". The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

9As the applicant can only be successful on the issues in dispute if he can prove that his injuries caused by the accident are not minor, I will determine that issue first.

Analysis

10I find that the applicant's physical injuries are minor injuries based on the totality of the medical evidence. On the day of the accident, the applicant was diagnosed at the hospital with strain in his lumbar spine region. On February 16, 2017 Dr. Ransom, applicant's family physician, notes the applicant's complaint of headaches and diagnoses post concussive headache whiplash injury and in March 2017 diagnoses concussion. Brain rest is prescribed. Imaging of the applicant's head shows no significant abnormality.

11In August 2017 Dr. Ransom recommends physiotherapy for the applicant due to ongoing back pain. In May 2019 Dr. Mehta, applicant's physician at Central X-Ray & Ultrasound, recommends massage therapy. June 2019 imaging of the applicant's pelvis and right shoulder shows no significant abnormalities apart from mild tendinosis in his right shoulder for which physiotherapy is recommended.

12The February 9, 2017 disability certificate, OCF-3 by Dr. Nalli, applicant's chiropractor, lists the applicant's physical injuries as whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, sprain and strain of thoracic spine, "other and unspecified parts of shoulder girdle", headache and sprain and strain of finger joints. These fall predominantly within the definition of "minor injury". Except for Dr. Ransom's diagnosis of concussion and post concussive headache, none of the applicant's other medical reports and records indicate any physical injuries other than soft tissue.

13The applicant submits that the MIG definition does not include concussion and/or post concussive syndrome and the applicant's injuries are therefore not minor. However, the weight of the medical evidence before me is that the Dr. Ransom's diagnoses of concussion and/or post concussive syndrome is not supported by the conclusions of the applicant's neurologists and accordingly, I attribute little weight to Dr. Ransom's diagnoses.

14The medical records filed by the respondent show that in August 2017 the applicant's "headaches resolved since his neck issue got better, resolved about 4 mos ago – HAs were secondary to car accident. Last week in Caribbean he was feeling better". Back strain was diagnosed by his physician following the applicant's report of lifting a bag in the garage after which he got severe back pain. In November 2017 it is documented that the applicant's neck pain had returned, and headaches accompanied the pain.

15Dr. Ransom refers the applicant to Dr. Baryshnik, neurologist, for headaches and pain on November 28, 2017. Dr. Ransom's referral note does not put forward a diagnosis and writes, in the past tense, that the applicant "...did have concussive symptoms after this car accident."

16Dr. Baryshnik reported to Dr. Ransom that the applicant was seen in neurologic consultation on May 30, 2018 for evaluation of back pain. Dr. Baryshnik writes that "this consultation was actually for headaches following a motor vehicle collision, but he informed me that his headaches were much improved and asked if I could discuss his back pain with him". Dr. Baryshnik concludes that the applicant has myofascial low back pain without any neurologic abnormalities on examination or MRI.

17I agree with the applicant's submission that his neurologist, Dr. Majl, in December 2017 does not make a direct diagnosis of concussion.⁴

18Dr. Otto Veidlinger, the applicant's physician who recommends neurological assessment in the October 2017 treatment plan described in issue iv above, does not list concussion as one of the applicant's injuries from the accident.

19I prefer the evidence of the applicant's neurologists Dr. Baryshnik and Dr. Majl over that of Dr. Ransom as to the applicant's medical condition. Neither of these neurologists diagnosed concussion. As neurologists, both Dr. Baryshnik and Dr. Majl have more education, more specialized medical training and experience and more ability to accurately assess whether the applicant suffered a concussion as a result of the accident than Dr. Ransom. I find that on a balance of probabilities the applicant is unlikely to have suffered concussion and/or post-concussive syndrome as a result of the accident as found by Dr. Ransom. However, the applicant argues that his chronic pain syndrome removes him from the MIG.

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

20I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain justifying treatment beyond the MIG.

21While there is some reference to pain, including head, neck, back and shoulder pain, in the applicant's medical records, as the applicant concedes⁵, there is no diagnosis of chronic pain syndrome by any of his physicians.

22The applicant's reporting of pain is not continuous, and the evidence demonstrates that it is not debilitating. The applicant has continued to work full-time and is able to travel and vacation. The applicant did not bring forward any evidence from his employer to establish any significant functional limitations in working or any corroborating evidence about his alleged inability to perform some personal and household tasks.

23In his submissions and reply submissions, the applicant submits that his medical records suggest chronic pain syndrome even though he has not been diagnosed with chronic pain syndrome by a physician. The applicant submits that I should rely on the various medical literature he puts forward in evaluating the applicant's medical condition. The applicant relies on other Tribunal decisions⁶ in support of the proposition that I should make inferences from the medical information and determine that the applicant suffers from chronic pain syndrome.

24I decline to make a finding that the applicant suffers from chronic pain syndrome based on the medical evidence put forward by the applicant which clearly falls short of establishing that the applicant suffers from chronic pain syndrome. The onus is on the applicant to prove that he suffers from chronic pain syndrome with persuasive medical evidence and he has not done so. The other Tribunal decisions cited by the applicant are specific to their facts and the issues raised and are not helpful here.

25Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain syndrome as a result of the accident that justifies treatment beyond the limits of the MIG.

26With respect to the treatment plan for the proposed neurological assessment described in issue iv above, the applicant also submits that the respondent failed to discharge its obligation to notify the insured of the medical reasons for the denial under s. 38(8) of the Schedule because the respondent did not provide a valid medical reason for the denial and as a result, the mandatory payment provisions under s. 38(11) (2) are triggered.

27Section 38(8) of the Schedule requires the respondent within 10 business days to notify the applicant of the services in the treatment plan that the insurer does not agree to pay for and give the medical and other reasons it considers the services not to be reasonable and necessary.

28This submission is unpersuasive. I find that medical and other reasons were given by the respondent in the EOB and that they were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the respondent's decision. There is no evidence that the notice sent by the respondent to the applicant on October 20, 2017 with treatment plan submitted October 13, 2017 proposing a neurological assessment ("EOB") does not comply with the Schedule's requirements. Having reviewed the EOB, I am satisfied that it meets the requirements of s. 38(8). The EOB appears to have been sent within 10 business days after the respondent received the treatment plan and the applicant did not argue otherwise. The EOB identified the services in the treatment plan that the respondent did not agree to pay for and gave the medical and other reasons why the respondent considers the treatment plan not to be reasonable and necessary. The medical reason given is that the respondent has "...reviewed and compared all medical documentation that has been provided, and compared it further to the MIG, and determined that there is insufficient compelling evidence of a documented pre-existing injury or condition and insufficient medical documentation to persuade us that your accident-related injuries fall out of the Minor Injury Definition. The treatment claimed is not reasonable or necessary as it does not conform to the Minor Injury Guideline treatment protocols..." The "other" reason given is that the coverage for a minor injury is capped at $3,500.00.

Medical Benefit: Are the treatment plans reasonable and necessary?

29Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the treatment plans and cost of examination in dispute are reasonable and necessary.

Interest

30As no benefits are payable, no interest is payable.

Order

31For the reasons outlined above, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit which has already been exhausted. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is owed. The applicant's claim is dismissed.

Footnotes

1. 1O. Reg. 34/19
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 (Div. Ct.) para 24.
4. 4Applicant’s submissions dated April 20, 2020, para 13.
5. 5Applicant’s submissions dated April 20, 2020, para 25.
6. 617-002907 v. Aviva Insurance Canada, 2019 CanLII 22223 (ON LAT); 17-000785 v. Unifund Claims Inc., 2017 CanLII 77346 (ON LAT).