Released Date: 06/07/2021

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:

Samuel Ajewole

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Yanira Monterroza, Paralegal

For the Respondent:

Symone Marlowe, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on August 20, 2018, 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 on the basis of 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:

a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

b. If the applicant’s injuries are not considered to be predominantly minor,

i. Is the applicant entitled to a medical benefit in the amount of $3,097.68 for psychological services recommended by Dr. Vuyo Mpulwana, as set out in a treatment and assessment plan dated March 20, 2019 and denied by the respondent on May 24, 2019?

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

RESULT

3The applicant has not demonstrated that he sustained impairments that warrant treatment beyond the MIG. The treatment plan in dispute is not reasonable and necessary and 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 or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that he should be removed from the MIG on the basis of his pre-existing health conditions and/or his chronic pain and/or a psychological impairment sustained in the accident. He points to an OCF-3 dated September 11, 2018 that lists headaches, neck, shoulder joint, shoulder girdle, lumbar spine and pelvis, low back pain, lower leg, ankle, symptoms involving emotional states, initiating and maintaining sleep and anxiety disorder as his accident-related impairments. As evidence of his pre-existing conditions, he relies on his OHIP summary and clinical notes from his family physician revealing hypertension, back pain, swelling and pain in his legs and hips that he submits was exacerbated by the accident and resulted in chronic pain. With regard to his psychological impairment, he relies on an August 13, 2019 letter from his family doctor responding to questions posed by counsel recommending psychological counselling due to his feeling of “generalized unease when driving or as a passenger in a vehicle.”

6I find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The injuries identified in the OCF-3 and subsequent medical documentation are sprain and strain injuries that fall clearly within the MIG as headaches and pain in his neck, back, shoulder and legs. There is no evidence of fractures or tears that would support that any of his accident-related impairments fall outside of the definition provided by s. 3(1). The s. 44 report of Dr. Sandhu found that the applicant’s presentation was consistent with residual symptoms from myofascial sprains and found the applicant to have predominantly minor injuries.

7With regard to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that will preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant submits that he has hypertension, back pain, swelling and pain in his legs and hips that was documented pre-accident and exacerbated by the accident, which warrants removal from the MIG under s. 18(2). However, while I agree with the applicant that these impairments are identified in the notes and records of his family physician, there is no medical opinion or compelling medical evidence that these specific impairments would preclude his maximal medical recovery if he is kept within the MIG, which is the requirement under s. 18(2). The MIG is clear that it is not enough to simply have a documented condition or injury at some point pre-accident, but rather there must be compelling evidence that the condition or injury will preclude recovery if the applicant is kept within the MIG. The s. 44 report of Dr. Sandhu found no evidence of a pre-existing condition that would prevent the applicant’s recovery if he is kept within the MIG and the applicant’s submissions do not indicate why these specific impairments would preclude his recovery under the MIG.

8Next, the Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment or if they have a diagnosis of chronic pain syndrome, as neither condition is captured within the definition of the MIG. Here, the applicant points to his complaints of back pain and the response from his family physician dated August 13, 2019 that states he has chronic pain as a result of the accident that warrants a chronic pain assessment. Unifund asserts that the applicant returned to work after two weeks, has not demonstrated functional impairment in his daily activities and relies on the s. 44 report that found his injuries to be predominantly minor. It also asserts that the applicant has yet to incur $900 in approved physical treatment.

9I agree with Unifund. The applicant’s reply states his condition as chronic pain syndrome but did not direct the Tribunal to such a diagnosis. While the applicant reports pain, his clinical notes describes it as “generalized body aches”, “on and off” and as “flare ups” leading to fatigue at work, which somewhat undermines the later claim that it is a chronic condition, let alone chronic pain syndrome, related to the minor injuries sustained in the accident. Further, despite recommending an assessment in 2018, it does not appear that the applicant ever followed up on the referral in the three years since and there is no treatment plan for a chronic pain assessment in dispute here. The clinical notes following the August 13, 2019 letter do not link his pain to the accident. In addition, where the s. 44 assessment revealed no objective indication of an impairment, where the family physician has consistently diagnosed sprain and strain injuries and where the applicant continues to work full-time and has approved but unused funding available to him under the MIG, it is difficult to find that the accident caused a chronic pain condition with functional impairment that requires intervention outside of the MIG.

10Finally, an applicant may also escape the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant again relies on his family physician’s response from August 13, 2019 that he is experiencing “generalized unease when driving or as a passenger in a vehicle” that requires psychological counselling. Unifund relies on two s. 44 psychological reports by Dr. Mandel, who did not offer a psychological diagnosis and identified no specific symptoms to support same. The report notes that while the applicant is fearful, he continues to drive and does not avoid travelling in a vehicle. On balance, I agree with Unifund. There are no contemporaneous emotional or psychological accident-related complaints in the clinical notes and records and there is no actual referral for a psychological assessment. Further, I find it difficult to accept “generalized unease” as a psychological diagnosis by the family physician where Dr. Mandel, a psychologist, did not offer a diagnosis despite conducting two assessments and reviewing the applicant’s medical file.

11Accordingly, I find the applicant has not met his burden of demonstrating on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Are the treatment plans reasonable and necessary?

12Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding that treatment has been approved up to the MIG limits, but not yet incurred by the applicant as a result of delay due to the pandemic. On the evidence, it appears that the applicant has approximately $900 in funding available to him. Therefore, an analysis of whether the treatment plan in dispute is reasonable and necessary is not required.

CONCLUSION

13The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. He is not entitled to payment for the disputed treatment plan or interest.

Released: June 7, 2021

__________________________

Jesse A. Boyce

Vice Chair

Footnotes

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