Citation: Lopez v. Unifund Assurance Company, 2021 ONLAT 19-013703/AABS

Released Date: 05/20/2021

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:

Mary Ann Lopez

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Anastasiya Chepak, Paralegal

For the Respondent:

Mannaneh Duval, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was struck while walking as a pedestrian on November 10, 2017, and sought benefits from the respondent, Unifund, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Unifund denied the benefits in dispute based on its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant 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 and therefore subject to the MIG?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,977.05 for physiotherapy treatment recommended by Mackenzie Medical Rehabilitation Centre, in a treatment plan (OCF-18) submitted on April 2, 2018 and denied on April 16, 2018?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,512.14 for psychological treatment recommended by Princeton Hills, in a treatment plan submitted on November 12, 2018 and denied on November 13, 2018?

iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,384.70 for physiotherapy treatment recommended by Mackenzie Medical Rehabilitation Centre, in a treatment plan submitted on June 6, 2018 and denied on June 7, 2018?

v. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,696.50 for physiotherapy treatment recommended by Mackenzie Medical Rehabilitation Centre, in a treatment plan submitted on December 7, 2017 and denied on December 15, 2017?

vi. Is the applicant entitled to the cost of an examination, in the amount of $2,055.32 for a psychological examination, recommended by Princeton Hills, in a treatment plan submitted on March 27, 2018 and denied on April 4, 2018?

vii. Is the applicant entitled to the cost of an examination, in the amount of $2,260.00 for a neurological examination, recommended by Princeton Hills, in a treatment plan submitted on March 27, 2018 and denied on April 5, 2018?

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

Result

3The applicant has not demonstrated that she sustained accident-related impairments that warrant removal from the MIG. The treatment and assessment plans are not reasonable and necessary or payable. No interest applies.

ANALYSIS

Applicability of the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that as a result of the accident she sustained injuries to her back, shoulder, elbow and face and now suffers from post-accident anxiety, depression and specific phobia. She submits that when “taken as a whole” her injuries warrant removal from and treatment beyond the MIG. To this end, she relies on an OCF-3; the clinical notes of her family physician, Dr. MacDonald; a psychological assessment report from Dr. Belyakova that diagnosed her with Specific Phobia; the OCF-18s in dispute; and various treatment records.

6In response, Unifund submits that the applicant sustained predominantly minor injuries as a result of the accident that are treatable within the MIG. It points to the lack of contemporaneous physical or psychological complaints to her family physician; to the s. 44 report of Dr. Aldridge that found no objective evidence of physical impairment and uncomplicated soft-tissue sprain/strain injuries; the s. 44 report of Dr. S-J Lee who found soft-tissue injuries; and the s. 44 report and addendums of Dr. Lee where the applicant reported that she did not feel that she required psychological treatment, that her anxiety was not “significant or impairing” and where she denied symptoms of anxiety and depression, leading to no psychological diagnosis. Further, Unifund submits that the applicant has furnished no evidence that any of the treatment was incurred.

The applicant has not demonstrated that removal from the MIG is warranted

7I agree with Unifund and find that the applicant has not demonstrated that her physical accident-related impairments warrant removal from the MIG. The OCF-3 in evidence reveals impairments that fall squarely within the MIG, as the injuries are identified as sprain and strain of the thoracic and lumbar spine, pelvis, SI joint, neck, shoulder, elbow, knee and hip. There is no evidence that any diagnostic imaging was conducted that would demonstrate a more significant physical impairment that would fall outside of s. 3(1). Indeed, it appears that the applicant’s physical impairments are primarily pain complaints which have not affected her day to day function, as the evidence before the Tribunal reveals that she returned to work two days post-accident and has continued her employment as a dental hygienist ever since. In a similar vein, there is no indication that her daily activities, self-care or home maintenance has been affected by her pain. There is no diagnosis of chronic pain or chronic pain syndrome in the medical documentation.

8The other impairments identified in the OCF-3 are sleep disorders, anxiety disorders and concussion. I place limited weight on these diagnoses for several reasons. First, as a chiropractor completing the OCF-3, it was beyond the scope of Dr. Violante’s practice to diagnose these impairments. Second, there is limited contemporaneous evidence that the applicant complained of these impairments to her family physician post-accident and the applicant self-reported that her sleep issues subsided shortly after the accident. There is also no evidence that the applicant lost consciousness or that she was experiencing any of the symptoms associated with a concussion. Finally, where Dr. Violante indicated in the OCF-3 that the applicant was substantially unable to perform the essential tasks of her employment (the income replacement benefit test) and also suffered a complete inability to carry on a normal life (the non-earner benefit test), when the evidence clearly demonstrates that neither was the case, undermines the veracity of the impairments identified in the document.

9The applicant points out her history of hypertension, however, there was no compelling opinion provided from a medical practitioner that her recovery from the accident would be prevented by her hypertension if she is kept within the MIG, as is required by s. 18(2). Considering the dearth of accident-related complaints to Dr. MacDonald, on balance, I find no reason to interfere with the uncontroverted s. 44 determinations of Dr. Aldridge and Dr. S-J Lee, who both determined that the applicant sustained uncomplicated soft-tissue injuries that were predominantly minor and that there was no objective evidence to support functional impairment.

10Next, the crux of the applicant’s position for removal from the MIG is based on psychological grounds. An applicant may escape the MIG based on psychological impairments because psychological impairments are not contained within the definition of a minor injury under s. 3(1). To this end, the applicant relies on the psychological report dated October 17, 2018 completed by Mr. Srinivasan, psychotherapist, under the supervision of Dr. Belyakova, psychologist. The report conducted a series of tests and diagnosed the applicant with Specific Phobia – Situational (pedestrian and passenger related). In response, Unifund relies on Dr. Lee’s s. 44 psychological report dated July 9, 2018 and addendums dated December 5, 2018 and September 24, 2020 that found that the applicant did not sustain a diagnosable psychological impairment as a result of the accident.

11On balance, I prefer the reports of Dr. Lee over the report of Dr. Belyakova/Mr. Srinivasan. First, as Unifund submits, there are only two references to anxiety in Dr. MacDonald’s clinical notes post-accident on September 8, 2018 and March 18, 2019. Both of these instances are well-after the accident and neither complaint pertains to the accident. At no point post-accident has Dr. MacDonald referred the applicant for psychological investigation. Second, there is no indication in the bulk of the medical evidence that the applicant is particularly affected by a specific phobia, as she takes public transportation on a daily basis to and from her work and frequently travels as a pedestrian. She self-reported to Dr. Lee that she does not get anxiety from being in a bus or car. Third, despite the diagnosis, the testing scores conducted in Dr. Belyakova’s report consistently revealed results in the “low average”, “minimal” and “mild” ranges, which suggests that even if the applicant has a diagnosable psychological condition, it is a minor one.

12With these facts in mind, I find Dr. Lee’s reports are more proportional to the medical evidence and the applicant’s condition. Over three assessments and after reviewing additional documentation, Dr. Lee’s opinion remained unchanged. His last addendum indicated that Mr. Srinivasan’s findings were congruent with his own conclusion of no diagnosable psychological injury and that he had found no compelling indication that the applicant suffered from a specific phobia or that she required psychological treatment. Indeed, the applicant self-reported to Dr. Lee that “she does not feel that she requires psychological treatment”, a statement which was not refuted by the applicant on reply. She also self-reported that her accident-flashbacks had resolved, that her anxiety is not “significant or impairing”, and, again, that being in a bus and car is not anxiety-provoking, which significantly undermines the diagnosis on which she relies. Again, she did not refute this.

13Given the dearth of psychological complaints to an objective medical practitioner post-accident and her own self-reporting to Dr. Lee, it is difficult to find that the applicant sustained a psychological impairment as a result of the accident that warrants removal from and treatment beyond the MIG. For these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG. Accordingly, I find no reason to interfere with Unifund’s position that the MIG applies.

Are the treatment and assessment plans reasonable and necessary?

14Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable.

Costs

15In submissions, Unifund sought its costs pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, submitting that the applicant’s claim was unreasonable and frivolous “in light of the clear lack of evidentiary support for her position.” Beyond this statement, Unifund provided no particulars. In any case, I find no basis for a costs order, as there is no evidence that the applicant acted unreasonably, frivolously, vexatiously or in bad faith to attract costs.

ORDER

16The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The treatment and assessment plans in dispute are not reasonable and necessary or payable. No interest applies.

Footnotes

1. 1O. Reg. 34/10, as amended.