Cao v. Unifund Assurance Company, 2022 CanLII 45259

Cao v. Unifund Assurance Company, 2022 CanLII 45259

Citation: Cao v. Unifund Assurance Company, 2022 ONLAT 19-011703/AABS - A Licence Appeal Tribunal File Number: 19-011703/AABS

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:

Ai Ming Cao Applicant

and

Unifund Assurance Company Respondent

AMENDED DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Philip Kai Kwong Yeung, Yu Jiang, Paralegal For the Respondent: Anju Sharma, Counsel

HEARD: By way of written submissions

REASONS FOR DECISION AND ORDER

BACKGROUND

1The Applicant, Ai Ming Cao, was involved in an automobile accident on January 7, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (Schedule).¹

2Unifund denied the applicant’s claims, including treatment for psychological services, because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3The applicant has exhausted the monetary limit of $3,500.00 under the MIG.

4The applicant’s position is that Unifund did not satisfy the notice requirements under s. 38(8) of the Schedule when it denied these treatment plans and that the consequences under s. 38(11) of the Schedule should be applied. Furthermore, the applicant submits that her injuries remove her from the MIG and that the treatment plan for psychological services is reasonable and necessary. The applicant is also seeking an award under Regulation 664 and interest.

5The respondent’s submissions do not address s. 38.

ISSUES

6The following are the issues to be determined, as per the Case Conference Order of Adjudicator Grieves, dated May 11, 2020:

1. 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?
2. Is the applicant entitled to $2,819.08 for chiropractic treatment recommended by Woodbine Perfect Rehabilitation Centre in a treatment plan (OCF-18) submitted on June 30, 2017, and denied on November 2, 2017?
3. Is the applicant entitled to $2,200.00 for a psychological assessment recommended by Somatic Assessment and Treatment Clinic in an OCF-18 submitted on April 23, 2020, and denied on April 24, 2020?
4. Is the applicant entitled to the amount of $3,701.88 for psychological treatment recommended by Somatic Assessment and Treatment Clinic in an OCF-18 submitted on April 23, 2020, and denied on April 24, 2020?
5. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

7The applicant’s submissions do not address issues 2 and 3. The respondent has submitted that the applicant appeared to have withdrawn these issues. The applicant was given an opportunity to do a reply to clarify this, but choose not to do so. As the applicant has chosen not to respond nor withdraw issues 2 and 3, I will still determine the issues in my decision and order below.

RESULT

8I find that the applicant sustained predominately minor injuries because of this accident and that she is also not removed from the MIG as a result of any pre-existing conditions, chronic pain or psychological impairments. However, as a result of Unifund’s non-compliance with s. 38(8) of the Schedule, the applicant is entitled to, pursuant to s.38(11)2, to any incurred expenses starting on May 8, 2020, for psychological services in the amount of $3,701.88, and ending on November 18, 2020, when compliant notice was provided.

9The applicant is not entitled to the OCF-18 in the amount of $2,200.00, for a psychological assessment as she incurred the assessment prior to submitting the OCF-18, and was non-compliant with s. 38(2) of the Schedule.

10The applicant is not entitled to an OCF-18 in the amount of $2,819.08 for chiropractic treatment as her injuries are classified within the MIG.

11The applicant is not entitled to an award under Regulation 664.

12The applicant is entitled to interest for the OCF-18 in the amount of $3,701.88, if this was incurred between May 8, 2020, to November 18, 2020.

13The applicant is not entitled to interest on the remaining OCF-18’s in dispute.

ANALYSIS

The Minor Injury Guideline

14I find that the applicant sustained predominately minor injuries because of this accident, and that she is also not removed from the MIG as a result of any pre-existing conditions, chronic pain or psychological impairments.

15The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

16Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap, if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment as a result of the accident. It is the applicant’s evidential burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

17There has been three Disability Certificates (OCF-3’s) submitted by Dr. Yeung, Dr. Blau and Dr. Tavares. Dr. Yeung, a physician, listed the following injuries: neck injury, back injury, and finger strain.⁴ Meanwhile, Dr. Blau⁵ and Dr. Tavares⁶, chiropractors had a longer list of injuries which included: radiculopathy, neurological conditions, and psychological symptoms.

18The OCF-3 completed by Dr. Yeung has injuries that are clearly within the definition of the MIG, and this was completed shortly after the accident. I prefer the OCF-3 completed by Dr. Yeung because he is a physician; the records of Dr. Blau and Dr. Tavares were not provided, and there is no compelling contemporaneous evidence that the applicant was diagnosed with any radiculopathy or other neurological conditions as a result of the accident. I do not place any weight on the psychological injuries listed in the OCF-3 completed by Dr. Blau and Dr. Tavares, as it is beyond the scope of a chiropractor to opine on psychological impairments.

19I note that on December 21, 2017, an ultrasound of the left ankle and knee revealed a focal tear in the medial meniscus and effusion in the left knee.⁷ However, I place no weight on this evidence as the applicant has failed to provide any evidence that links this to the accident. The first time the applicant complained to her family physician, Dr. Ng, about knee pain was on June 3, 2017, and she did not mention the accident.⁸ On February 7, 2018, Dr. Chan diagnosed the applicant with mild medial osteoarthritis knees and there is no reference to the focal tear or the accident.⁹ The onus is on the applicant to demonstrate that but for the accident, the focal tear in the left knee would have not occurred and she has failed to do so.

Pre-existing medical condition

20The applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any pre-existing conditions.

21It is well-settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

22I agree that the applicant had pre-existing conditions, however she has failed to adduce any evidence of how these pre-existing conditions were aggravated by the subject accident, and would affect her ability to recover within the MIG. In particular, neither Dr. Ng, Dr. Chan or any other assessors have concluded that her pre-existing conditions would affect her ability to recover within the MIG.

23I also note that the applicant has advised the following assessors, Dr. Naiman, Dr. Saghatoleslami and Dr. Weinberg that she had no pre-existing conditions prior to this accident other than a motor vehicle accident in 2008 in which she recovered from her injuries.¹⁰

24As such, I find that the applicant is not removed from the MIG based on any pre-existing conditions.

Chronic Pain

25The applicant has failed to prove on a balance of probabilities that she suffers from chronic pain, and therefore, she is not removed from the MIG as a result of same.

26The Applicant submits that she should be taken outside of the MIG for chronic pain, because she has reported ongoing physical pain and demonstrated muscle weakness and pain particularly with functioning. My review of the medical records of Dr. Ng demonstrates that although she has made physical complaints, none of these complaints have been linked to the accident.¹¹ On March 16, 2017, the first visit post accident, she only complained of lower back pain, which she stated had only started two days previously. Dr. Ng also concluded that this pain was not due to an injury. I place significant weight on this evidence because Dr. Ng was the applicant’s treating practitioner and he concluded that the pain was not related to an injury.

27The applicant further submits that the records indicate that she is dependent on prescription drugs and health care providers, and that she has developed a psychosocial sequalae after the accident, including depression and anxiety. Dr. Chan may have discussed pain control drugs, but that was not as a result of this accident. In fact, it does not appear that Dr. Chan was even aware of this accident. Further, there is no overreliance on healthcare providers as indicated by the records. Also, the applicant has not once complained about depression or anxiety to her treating practitioners, Dr. Chan, or Dr. Ng.

28Although Dr. Chan recommended physiotherapy, shockwave and laser treatment on February 7, 2018, this was related to impairments that are not linked to this accident. During this visit, the applicant failed to mention the accident, and in particular, Dr. Chan noted that “there is no significant injury to the back all along.”¹²

29I am not persuaded the additional therapy recommended by Dr. Ng on December 21, 2017, was otherwise linked to impairments caused by the accident. In particular, during this visit, the applicant advised that she had left lower back pain and hip area pain for the previous month, and she was unsure if was related to the accident. I further note that Dr. Ng only diagnosed the applicant with myofascial strain post-accident.

30On September 14, 2019, the applicant advised Dr. Ng that she had pain in the lower back since the beginning of August and once again there was no reference to the accident. In particular, the applicant stated… “pain just came suddenly, [she] does not why it came”.¹³

31I have limited evidence to find that the applicant should be removed from the MIG on the basis of chronic pain. This finding is supported by the lack of medical evidence; Dr. Ng opined that the applicant had no functional limitations with respect to: lifting, carrying and shifting weight, mobility, hearing and vision¹⁴, and Dr. Naiman’ s. 44 reports concluded that the applicant’s injuries were within the MIG as she had residual myofascial tightness of the cervical spine and lumbar spine.¹⁵ On the limited medical evidence available, I see no reason to disagree with this opinion.

32For the reasons set out above, I find that the applicant has failed to prove on a balance of probabilities that she suffers from chronic pain, and therefore, she is not removed from the MIG on that basis.

Psychological Impairment

33The applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any psychological impairment from the accident.

34The applicant claims that she suffers from psychological impairments as a result of the accident that cannot be captured within the MIG.

35An applicant may be removed from the MIG if she demonstrates a psychological impairment. If established, psychological impairments fall outside the MIG because the MIG only governs “minor injuries”, and the definition does not include psychological impairments.

36There are 3 psychological assessments before me.

37The applicant relies on the report of Ms. Fang and Dr. McDowall, dated April 22, 2020. Ms. Fang/Dr. McDowall diagnosed the applicant with Major Depressive Disorder with Anxious Distress, as well as a Specific Phobia (travel).¹⁶ I have issues with this report which will be addressed later. The second, the respondent relies on Dr. Weinberg’s report, dated October 27, 2017. I find this report persuasive despite the applicant’s submission that he failed to review any updated records. Unlike Dr. McDowall’s report, Dr. Weinberg listed the documentation he reviewed, and the applicant did not provide any updated records until after this report was completed.¹⁷

38I find Dr. Weinberg’s report persuasive as he conducted not only psychometric tests but validity testing, such as the Digit Span Memory Test and The Test of Memory Malingering. This report was only done several months after the accident, and the psychometric testing confirmed that the applicant scored in the minimal range for depression on the BDI-II (Beck Depression Inventory), and the mild range for anxiety on the BAI (Beck Anxiety Inventory). The applicant also denied having any accident-related nightmares, flashbacks, intrusive ideations, or distressing recollections. I do note that the applicant did advise that she continued to drive on a daily basis with moderate reported anxiety. Dr. Weinberg opined that she did not meet a diagnosable psychological condition as a result of the accident. Also, Dr. Weinberg acknowledged that although the applicant had anxious symptomatology, this was neither extensive nor intense enough to warrant a psychological diagnosis.¹⁸

39Third, the respondent relies upon the report of Dr. Saghatoleslami on November 17, 2020. I find this report persuasive as he relied not only on the applicant’s self reporting, but he also reviewed the medical evidence and conducted validity testing. The applicant herself advised Dr. Saghatoleslami that: although her mood tended to fluctuate, she was not sure why; she denied having any nightmares or flashbacks of the accident; and although she had difficulty sleeping, she did not know why. The only psychological complaint that she had with respect to the accident was that she was anxious with respect to driving. The Symptom Validity Measure, an objective test, confirmed that the applicant did not provide her best effort in the assessment. Dr. Saghatoleslami opined that the applicant endorsed subclinical symptoms of anxiety about driving. Dr. Saghatoleslami further concluded that due to concerns about her performance on an objective test of effort and motivation, it was difficult to determine an accurate diagnosis as a result of the accident. Finally, Dr. Saghatoleslami opined that as a result of the accident, the applicant did not meet the full DSM-V diagnosis for any mental health disorder, and as such her injuries were classified within the MIG.¹⁹

40I prefer the reports of Dr. Weinberg and Dr. Saghatoleslami, for the following reasons:

i. Both Dr. Weinberg and Dr. Saghatoleslami conducted validity testing. Meanwhile, Ms. Fang/Dr. McDowall’s report relied on self reporting and on self-questionaries completed by the Applicant;

ii. Both Dr. Weinberg and Dr. Saghatoleslami’s reviewed medical evidence. Ms. Fang/Dr. McDowall did not review any medical evidence in preparing their report;

iii. Ms. Fang/Dr. McDowall’s report is also inconsistent with respect to the applicant’s employment history. Ms. Fang/Dr. McDowall’s report indicates that the applicant took sick leave following this accident and she did not return to work before her company shut down. This is inconsistent with the evidence that the applicant provided to the other assessors. The applicant has repeatably stated that she took some time off from work and then returned to her pre-accident employment before the company shut down;

iv. Ms. Fang/Dr. McDowall’s report of the applicant being irritable, argumentative, impatient, and experiencing flashbacks from this accident is inconsistent with the evidence that the applicant provided to the other assessors;

v. Dr. Weinberg’s report was completed only six months after the accident and the psychometric testing fell within the minimal range. More than three years later, the applicant presented with far higher scores on her self-completed questionnaires, however during this gap, she never once sought medical attention or treatment for any psychological symptoms related to this accident; and

vi. The applicant has not complained of any psychological symptoms from this accident to either Dr. Ng or Dr. Chan, her treating practitioners. The few times that the applicant did complain to Dr. Ng about difficulty sleeping due to pain and nocturia, both unrelated to the accident.

41The applicant further relies on an updated OCF-3 completed by Rick Tavares, chiropractor which states that she has psychological symptoms. I place no weight on this as Dr. Tavares is a chiropractor and it is outside of his scope to determine whether the applicant sustained a psychological impairment as result of this accident.

42Overall, on a balance of probabilities, I find that the applicant has failed to prove that she should be removed from the MIG as a result of a psychological impairment.

Sections 38(8) and 38(11) of the Schedule

43I find that Unifund’s explanation of benefits (EOB) of April 24, 2020 was non-compliant with s. 38(8) of the Schedule. However, I find the subsequent EOB to be compliant with s.38(8).

44Sections 38(8),(9), and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not. An insurer must also provide notice regarding the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. Section 38(9) requires that if the insurer takes the position that the MIG applies, it must include this information in the notice. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

45The applicant submits that the denials of issues 3 and 4 in this matter are noncompliant with Section 38(8) as Unifund failed to provide any medical reasons in their correspondence of April 24, 2020. The respondent failed to provide any response or rebut these submissions.

46Unifund’s EOB of April 24, 2020, states that further medical documentation had been provided and s. 44 reports were required to determine whether the new information affected the opinions and conclusions of Dr. Weinberg and Dr. Alisa Naiman. The EOB also states that a notice of examination would follow under a separate cover, however neither party provided me with this document. The EOB also failed to mention whether the applicant’s impairments were in the MIG or not. This EOB also included the OCF-18’s for issues 3 and 4. I note that Unifund simply ticked the box that stated that they do not approve the OCF-18’s.²⁰

47In this case, the applicant has been subject to the MIG. Therefore, an insurer who fails to provide the insured with adequate notice of the reasons for denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the MIG applies. Furthermore, pursuant to s. 38(11)2, the respondent shall pay for all goods, services, assessments and examinations described in the treatment plan starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives a notice that complies with s. 38(8) of the Schedule.

48I find that Unifund’s EOB of April 24, 2020, is non-compliant with s. 38(8) of the Schedule. The EOB is vague, does not provide the Applicant with any medical reasons for the denial and does not even state that the MIG is applicable, and that is the reason the OCF-18’s are being denied.

49There is a subsequent EOB and Insurer’s Examination (“IE”) reports sent by Unifund on November 18, 2020. I find this subsequent EOB to be compliant with s. 38(8) and therefore cures the deficiency in the previous letter of April 24, 2020. The subsequent EOB provides more information and refers to the reports of Dr. Niaman and Dr. Saghatoleslami whom concluded that the OCF-18’s was not reasonable and necessary.²¹

50With respect to the OCF-18 for psychological treatment in the amount of $3,701.88, I find that pursuant to s. 38(11)1, the respondent is prohibited from taking the position that the MIG applies. However, I find that the respondent provided a compliant notice on November 18, 2020. As such, I find that with respect to this OCF-18, the applicant is entitled to any incurred expenses starting on May 8, 2020, for psychological services and ending on November 18, 2020.

51With respect to the OCF-18 for the psychological assessment in the amount of $2,200.00, as the applicant incurred the assessment prior to submitting the OCF-18, she was non-compliant with s. 38(2) of the Schedule. Although, the respondent’s initial denial was non-compliant with s. 38(8), this does not affect the applicant’s statutory obligation to submit the OCF-18 prior to the treatment being incurred.

OCF-18 for chiropractic services

52As I found the applicant to be in the MIG and she has exhausted the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of this OCF-18.

Award Pursuant to Regulation 664

53The applicant is not entitled to an award pursuant to section 10 of Regulation 664 for the reasons outlined below.

54Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

55Despite the respondent being non-compliant initially with s. 38(8) of the Schedule, this does not support the finding that their action rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate behavior, and such, the Applicant is not to an award under Regulation 664.

ORDER

56For the reasons outlined above, I find that:

i. The applicant sustained predominately minor injuries as defined under the Schedule;

ii. The respondent was initially non-compliant with section 38(8) of the Schedule, and as such the applicant is entitled to pursuant to s.38(11)2, to any incurred expenses starting on May 8, 2020, for psychological services in the amount of $3,701.88, and ending on November 18, 2020, when compliant notice was given;

iii. The applicant is not entitled to an OCF-18 in the amount of $2,200.00 for a psychological assessment;

iv. The applicant is not entitled to chiropractic treatment in the amount of $2,819.08 as set out in the OCF-18 submitted on June 30, 2017;

v. The applicant is not entitled to an award under Regulation 664; and

vi. The applicant is not entitled to interest except for the OCF-18 in the amount of $3,701.88 if this was incurred between May 8, 2020 to November 18, 2020.

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 Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Respondent’s Submissions, Tab 10, Disability Certificate, dated January 9, 2017.
5. 5Respondent’s Submissions, Tab 11, Disability Certificate, dated January 11, 2017.
6. 6Respondent’s Submissions, Tab 12, Disability Certificate, dated February 9, 2018.
7. 7Applicant’s Submissions, Tab 3, Clinical Notes and records of Dr. Chan.
8. 8Applicant’s Submissions, Tab 2a, Clinical Notes and Records of Dr. Ng.
9. 9Applicant’s Submissions, Tab 2b, Clinical Notes and Records of Dr. Ng.
10. 10Respondent’s Submissions, Tab 1, 2 and 9, Reports of Dr. Naiman, Dr. Saghatoleslami and Dr. Weinberg.
11. 11Applicant’s Submissions, Tab 2a and 2b, Clinical Notes and Records of Dr. Ng.
12. 12Applicant’s Submissions, Tab 3, Clinical Notes and Records of Dr. Chan.
13. 13Applicant’s Submissions, Tab 2b, Clinical Notes and Records of Dr. Ng.
14. 14Respondent’s Submissions, Tab 16, Pre-Admission Medical Report.
15. 15Respondent’s Submissions, Tab 1 and 17, Reports of Dr. Naiman, dated October 27, 2017 and November 17, 2020.
16. 16Applicant’s Submissions, Tab 5, Psychological Assessment Report, dated April 22, 2020.
17. 17Respondent’s Submissions, Tab 9 and 26, Psychological Assessment, dated October 27, 2017, and letter dated February 20, 2018.
18. 18Ibid.
19. 19Respondent’s Submissions, Tab 2, Psychological Assessment dated November 17, 2020.
20. 20Applicant’s Submissions, Tab 6, EOB dated April 24, 2020.
21. 21Applicant’s Submissions, Tab 7, EOB dated November 18, 2020.