Weir v. Unifund Assurance Company, 2021 CanLII 30396

Licence Appeal Tribunal

Citation: Weir v. Unifund Assurance Company, 2021 ONLAT 19-009406/AABS

Release date: 04/01/2021

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:

Roger F. Weir

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Anita John

APPEARANCES:

For the Applicant:

Jeton Memeti, Paralegal

For the Respondent:

Jonathan Tatner, Counsel

HEARD:

By way of written submissions

OVERVIEW

1R.W., (“the applicant”) was injured in an automobile accident (“the accident”) on October 22, 2018 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). The applicant was a seat-belted passenger of a vehicle that was rear-ended at a red light. He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined 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 Guideline² (“the MIG”). The applicant’s position is the opposite.

3If the applicant’s position is correct, then I must address the issue of whether the medical treatment(s) claimed is/are reasonable and necessary.

4If 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 necessary as the balance under the MIG remains $835.77 as of February 6, 2020.

ISSUES

5Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

6If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to receive a medical benefit, in the amount of $2,024.96, for chiropractic services, recommended by Dr. Wisam Nazy, in a treatment plan, dated May 22, 2019, denied by the respondent on May 28, 2019?

ii. Is the applicant entitled to receive a medical benefit, in the amount of $1,919.33 for chiropractic services, recommended by Dr. Nazy, in a treatment plan, dated October 28, 2018, denied by the respondent on November 13, 2019?

iii. Is the applicant entitled to an award, under s. 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed payments to the applicant?

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

RESULT

7I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness of the treatment plans, the issue of interest, or the award request.

ANALYSIS

The Minor Injury Guideline

8Subsection 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean. Psychological injuries fall outside the MIG.

9Subsection 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

10The onus is on the applicant to show that his/her injuries fall outside of the MIG³

Did the applicant suffer from physical injuries that removes him from the MIG?

11The applicant claims that mild degenerative disc disease is sufficient to warrant a MIG removal. I find that the evidence establishes the applicant has sustained injuries that are defined as predominantly a minor injury.

12The respondent relies on an insurer examination, which addressed medical/rehabilitation benefits within the MIG, dated July 25, 2019. Dr. S. Taylor, GP, states the following: “At this time the diagnosis is cervical strain and lumbar strain. I have a strong clinical impression that the claimant has nerve root impingement in his lumbar spine. Therefore, while he currently would fit the definition of having suffered minor injuries. I strongly suspect that the findings of the MRI will show disc herniation with nerve root impingement.”

13In a letter dated, August 1, 2019, Unifund AB adjuster, Mary Catherine White quotes Dr. Taylor’s treatment. “The claimant has received an adequate course of therapy and should focus on a home-based exercise program. If the claimant suffers from significant nerve root impingement, the only treatment that might relieve the impingement would be surgical. MRI is required to determine whether my clinical impressions are correct.” She advises the applicant “to follow up with general practitioner to arrange the MRI and forward the report once it is received.”

14The applicant relies on an MRI, dated August 16, 2019, of the lumbar spine , reviewed by Dr. David Jacobs. Dr. Jacobs found the applicant has mild degenerative disc disease. Dr. Jacobs does not link the degenerative disc of the applicant’s spine to the accident.

15I am persuaded by the 2016 LAT decision, that the respondent relies on, L.C. and Aviva Insurance Company of Canada.⁴ In that decision, an MRI was completed almost two years post-accident which showed multi-level degenerative disc disease of the lumbar spine, with signs of disc bulging with possible nerve root impingement. Nonetheless, the Tribunal found that this did not result in a MIG removal.

16The paper review addenda of Dr. Taylor dated September 18, 2019 and April 14, 2020 reviewed the MRI, dated August 16, 2019 and further confirmed that there was no change to the prior opinions which concluded injuries were within the Minor Injury Guideline. As a result, I find that the applicant has not provided compelling medical evidence that he sustained physical disease injuries that require treatment outside of the MIG.

Does the applicant have psychological impairments?

17The applicant claims that he sustained psychological injuries as a result of the accident. In discussing his psychological state, he focuses on a statement in a s.44 insurer examination report, dated July 25, 2019, which was prepared by an IE assessor, psychologist, Dr. Watson.

18In a section entitled “overall”, Dr. Watson states: “Overall: When viewed together, it is noted that psychological symptomatology is being reported to be present at the current time.”

19The applicant therefore submits that it does not make any sense that the assessor did not find a psychological diagnosis.

20To rebut the applicant’s claim, the respondent asserts that for the in-person assessment Dr. Watson carried out multiple tests including validity testing, making this a thorough report that cannot be limited to this one observation.

21That is, Dr. Watson went on to opine: “Due to the lack of validity findings and lack of significant test results and functional limitation, there are no diagnosable accident related psychological conditions present at this time.”

22The further paper review addenda of Dr. Watson, dated April 14, 2020 and April 16, 2020, confirmed that there was no change to the prior opinions which concluded a lack of psychological diagnosis.

23Despite reporting symptoms, it was not enough for Dr. Watson to diagnose the applicant with a psychological condition. In addition, the applicant has not seen his treating family doctor with respect to any emotional issues.

24I am persuaded by a reconsideration decision, that the applicant relies on, 17-003600/AABS v. Aviva General Insurance.⁵ In that decision, Adjudicator Mather held that there is no absolute requirement in law that a person have DSM diagnosis to be removed from the MIG for psychological reasons.

25Although there is no requirement to be bound by a psychological diagnosis, nonetheless, I find that there is a lack of compelling evidence to support the presence of psychological impairment that would take the applicant out of the MIG.

Does the applicant suffer from chronic pain and chronic pain headaches?

26The applicant submits that he suffers from chronic pain, which removes him from the MIG, because the prescribed definition of “minor injury” does not include chronic pain and chronic pain headaches.

27The applicant cites notations of chronic pain from selected clinical notes and records (“CNRs”) of Dr. Sameh Fikry:

(i) On July 4, 2019, the applicant reports that pain is the same with chronic neck pain.

(ii) On August 23, 2019, the applicant reports that the pain level is the same with no change. The lower back pain and neck pain is 8/10. A notation of A-Ch pain is present. The clinical note does not indicate what A – Ch pain stands for.

(iii) On October 3, 2019, the applicant reports that the pain level is the same with neck pain at 8/10 and lower back pain at 8/10. A notation of A – Chronic pain is made. The clinical note does not indicate what A stands for.

(iv) On January 23, 2020, the applicant reports that there is no change to pain level. A notation reads “pt educated on chronic pain, A- chronic pain, HIN.” The clinical note does not indicate what HIN stands for.

28First, I find that the notations of “chronic pain” by a family doctor is not enough to take the applicant out of the MIG. On this point, I am guided by a 2020 decision that the respondent relies on, P.Y. and Aviva Insurance Company⁶ where Adjudicator Chakravarti, was not persuaded that the applicant sustained chronic pain as a result of the accident. She held that “one aside notation of chronic pain by a family doctor is not enough to take the applicant out of the MIG especially when the doctor provides no further discussion of the symptoms, its effects on the applicant’s functionality and/or the treatment that has already been undertaken.”

29Second, I find that the chronic pain and headaches have not caused any functional limitation and disability to the applicant. There has been no significant disruption or disablement of the applicant’s pre-accident activities of daily living.

30I am persuaded by the case that the respondent relies on, W.C.P. v. Certas Home and Auto Insurance Company.⁷ At paragraph 24, the Tribunal stated: “Although a diagnosis of chronic pain is not required, there must be compelling evidence of symptoms that are continuous, and of a severity that they cause suffering and distress accompanied by functional impairment or disability. There is no evidence that the applicant was diagnosed with chronic pain syndrome or needed to consult with a chronic pain clinic.”

31To the case at hand, the OCF-1 indicates that at the time of the motor vehicle accident, the applicant was working full-time at 40 hours a week as a plant operator at Preston Sand and Gravel earning about $90,000.00 annually. The OCF-1 confirms that the applicant returned to work post-accident.

32Third, I find that the chronic pain suffered from the applicant is sequelae of the soft tissues injuries suffered as a result of the accident.

33I am persuaded by the 2017 LAT decision, 17-000835 v. Aviva Insurance Company of Canada,⁸ that the respondent relies on, where Adjudicator Ferguson found that the ongoing pain of the applicant is sequelae of the applicant’s soft tissue injuries is within the MIG.

34I find that the applicant’s lower back and neck pain are sequelae of the soft tissue injuries suffered as a result of the motor vehicle accident. The totality of the evidence suggests that all of the injuries diagnosed would appear to fall within the MIG as they are predominantly sprains and strains, and there is no chronic pain diagnosis.

Chronic Headaches

35A Disability Certificate, (OCF-3), dated February 14, 2019, filled out by Dr. Sameh Fikry, noted that the applicant suffered from post traumatic headaches.

36I am persuaded by the decision, 17-005179/AABS v. Aviva Insurance Company of Canada,⁹ that the respondent relied on, where Adjudicator Norris found that the applicant’s cervicogenic headaches were sequelae of soft tissue injuries as a result of the accident. In that decision, the applicant’s key piece of evidence, the chronic pain assessment report by Dr. Jacobs, restates that the applicant suffers from headaches, pain in the base of the skull, and joint pain in the lumbar and cervical spine. The injuries diagnosed by Dr. Jacobs fall within the MIG. Dr. Jacobs goes on to state that neurological examination with the applicant was within normal limits, effectively ruling out any diagnosis of a neurological injury, which would exclude the applicant from the funding limit provided in the MIG.

37I find that the applicant’s chronic headaches are sequelae of the soft tissue injuries suffered as a result of the accident. The applicant does not have any neurological diagnosis confirming neurological injuries.

Sleeping Disorders

38The applicant submits he suffers from a sleeping disorder as a result of his injuries. I find that there is insufficient objective medical evidence demonstrating that he suffers from a sleeping disorder that would remove him from the MIG.

39The subjective findings contained in the applicant’s file notes for Activa Clinics Kitchener for chiropractic services noted that the applicant has been struggling to sleep.

40Save for these subjective complaints, I have not been provided with any medical evidence that the applicant suffers from a sleeping disorder. Nor has the applicant made submissions on how the trouble he is experiencing with sleeping should remove him from the MIG. As a result, I find that he has not presented any compelling evidence suggesting that he be removed from the MIG on the basis of a sleeping disorder.

Does the applicant have a concussion or post-concussive issues?

41The applicant suggests that he has suffered from a possible concussion in the additional comments section of the OCF-18s for chiropractic treatment and chronic pain assessment. The treating family doctor notes do not refer to any concussion sustained by the applicant.

42Concussions and post-concussion issues, if established, fall outside the MIG.

43However, save for the treatment plans, I find the medical records do not support the claim that the applicant sustained a concussion in the accident.

Does the applicant have any pre-existing conditions?

44Subsection 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

45The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. Rather, it must be shown to prevent maximal recovery within the cap imposed by the MIG.

46The Disability Certificate (OCF-3), completed by chiropractor, Michael Rumeo, dated January 15, 2019 indicates “no” prior conditions.

47The Disability Certificate (OCF-3), completed by the family physician, Dr. S. Fikry, of February 14, 2019, indicates “no” prior conditions.

48The applicant’s submissions make no reference whatsoever to any prior health issues.

49I find that there is no relevant, documented pre-existing condition.

50Because I have found the applicant’s injuries to fall within the MIG, there is the issue of the balance under the MIG, which remains to be $835.77 as of February 6, 2020, that needs to be addressed.

51The treatment plan, in the amount of $1,919.33 for chiropractic treatment has a goal of pain reduction and increased range of motion. In the insurer examination executive summary for medical rehabilitation benefits/MIG, Dr. Taylor acknowledges that the examination revealed a moderate loss of normal movements of the applicant’s cervical spine.

52I find that the treatment plan for chiropractic treatment to be reasonable and necessary. I order that the balance of the MIG, which remains to be $835.77, be applied to the OCF-18 for chiropractic treatment in the amount of $1,919.33.

AWARD

53Section 10 of Regulation 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments. The respondent has not unreasonably withheld or delayed payments. The award is not granted.

CONCLUSION

54For the reasons outlined above, I find that:

i. The applicant sustained predominantly minor injuries that fall within the MIG.

ii. With the exception of the balance of $835.77, the applicant is not entitled to the treatment plans claimed in this application.

iii. The applicant’s award claim is denied.

iv. There are no overdue benefit payments and therefore no interest is owing to the applicant.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 416-001387 v Aviva Insurance Company of Canada, 2017 CanLII 12598 (ON LAT).
5. 517-003600 v. Aviva General Insurance, 2019 CanLII 63355 (ON LAT)(reconsideration) .
6. 6P.Y. v Aviva Insurance Company, 2020 CanLII 30372 (ON LAT) at para 40.
7. 7W.C.P. v. Certas Home and Auto Insurance Company, 2020 CanLII 19579 (ON LAT).
8. 817-000835 v. Aviva General Insurance, 2017 CanLII 59495 (ON LAT).
9. 917-005179 v. Aviva Insurance Company of Canada, 2018 CanLII 81910 (ON LAT).