Stephen v. Unifund Assurance Company, 2022 CanLII 81514

Licence Appeal Tribunal

Citation: Stephen v. Unifund Assurance Company, 2022 ONLAT 20-006691/AABS

Licence Appeal Tribunal File Number: 20-006691/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:

Antoinette Stephen

Applicant

and

Unifund Assurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Jonathan S. D. Wakelin, Counsel

For the Respondent: Savneet Multani, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1Antoinette Stephen (the "applicant") was injured in an automobile accident on June 16, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule")¹ from Unifund Assurance Company (the "respondent"). The respondent denied certain benefits on the basis that the applicant sustained predominantly minor injuries as a result of the accident and was therefore subject to treatment within the Minor Injury Guideline (the "MIG").² The applicant applied to the Licence Appeal Tribunal (the "Tribunal") for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are to be decided:

(i) Are the applicant's injuries predominantly minor as defined in the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?

(ii) Is the applicant entitled to $2,569.40 for chiropractic treatment recommended by the Mackenzie Medical Rehabilitation Centre in an OCF-18 dated May 24, 2018?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

(i) The applicant's injuries are predominantly minor in nature and therefore subject to treatment within the MIG.

(ii) Given that the applicant is within the MIG and the $3,500.00 limit has been exhausted, the treatment plan in dispute is not payable.

(iii) The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ANALYSIS AND OVERVIEW

Does the MIG Apply?

4The 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.

5Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a limit of $3,500.00. An applicant may receive payment for treatment beyond this limitation if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they can provide evidence of a psychological impairment or chronic pain with a functional impairment.

6It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities.³

7The applicant in this matter has already exhausted the $3,500.00 MIG treatment limit.

Medical Evidence

8The applicant received medical treatment for a left-arm laceration at the scene of the accident on June 16, 2017, and then attended a hospital emergency room on both June 20, 2017 and June 26, 2017 for further treatment of her left arm and due to complaints of facial swelling due to the accident.⁴

9The applicant visited her family physician, Dr. E. Woo, on July 4, 2017, and then on three other occasions through the remainder of 2017.⁵ She reported left shoulder pain, low back pain, pain in both shoulders, and being uncomfortable when sitting for long periods of time.⁶ Dr. Woo prescribed medication for pain and physiotherapy on July 4, 2017.⁷ She attended at least ten further appointments with Dr. Woo from 2018 through 2020 with the same accident-related health concerns, along with added issues regarding driving-related anxiety.⁸

10The applicant received physiotherapy treatment at the Pickering Physiotherapy Institute on at least 18 occasions from July 6, 2017 to December 7, 2017.⁹ She was diagnosed by R. Bonzon, registered physical therapist, with "Whiplash Associated Disorder (WAD2) with strained neck with MSK involvement including strained bilateral UFT, strained bilateral rhomboids, strained mid to low back paraspinal, ES and QL muscles, strained bilateral rotator cuff muscles including subscapularis, biceps tendon, supraspinatus and infraspinatus muscles, + headache and dizziness showing signs of depression."¹⁰ The clinical notes and records ("CNRs") provided indicate limited progress during this physiotherapy treatment, with the applicant continuing to report complaints of upper and lower back pain and tightness, back tenderness, and neck pain throughout the course of treatment.¹¹ Only some improvement was noted with the applicant's neck symptoms, as she reported it was "better" and "feeling good" at her November appointments.¹²

11A Disability Certificate ("OCF-3") filed by Dr. A. Jamal, chiropractor, of the Mackenzie Medical Rehabilitation Centre on May 24, 2018 indicates that the applicant was suffering from chronic pain, low back pain, muscle strain, headache, sprain and strain of the cervical, thoracic, and lumbar spine, sprain and strain of the shoulder joint, sleep disorder, irritability and anger, and unspecified anxiety disorder.¹³ An examination conducted that same day by D. Landers, massage therapist, resulted in the OCF-18 in dispute, which recommended physical treatment for the above impairments and included an added notation about chronic pain being a barrier to recovery.¹⁴

12The applicant submitted additional evidence from examinations conducted with regard to a number of OCF-18s not in dispute here. The OCF-18 dated July 25, 2018 of Dr. A. Jay, chiropractor, noted chronic pain, sleep disorder, impingement syndrome, irritability and anger, and anxiety disorder.¹⁵ Multiple OCF-18s of Dr. D. Hylton, chiropractor, of Spine Health Care Clinic dated June 3, 2019, October 2, 2020, and October 27, 2020 noted the same complaints, along with constant pain in the affected joints, frustration and anger, severe sleep difficulties, sensations of numbness.¹⁶

13As a result of the above medical evidence, the applicant submits that a removal from the MIG is warranted due to symptoms of chronic pain and psychological symptoms.

14The respondent relies primarily on multiple insurer's examinations ("IEs"). Dr. D. Saunders, psychologist, conducted psychological assessments on November 6, 2018 and March 4, 2021.¹⁷ The diagnoses found no evidence of psychological impairment as a result of the subject accident, or any evidence of a pre-existing psychological condition that was exacerbated as a result of the subject accident.¹⁸ Dr. R. Lam, general practitioner, conducted assessments on October 29, 2018 and November 16, 2020.¹⁹ His diagnoses found that the applicant had sustained soft-tissue injuries, including myofascial strain injuries to the cervical spine, that would all fall within the MIG definition of a minor injury.²⁰ Dr. Lam further did not find evidence of any pre-existing physical condition that would prevent the applicant from reaching maximal recovery from the accident-related injuries, if limited to the MIG.²¹

15As a result of these IEs, the respondent submits that the applicant has not met her burden of proving that the accident-related injuries fall outside of the MIG, and that the MIG and its limitations apply.

Chronic Pain

16For chronic pain to take an applicant out of the MIG, the applicant must provide medical evidence that accident-related injuries have had a detrimental impact on functionality. This evidence must support a claim that the applicant's functionality has been impaired and that chronic pain is the cause of that disability.

17Although it is generally accepted that to meet a diagnosis of chronic pain, an individual must be deemed to meet at least three of the six criteria as set out in the American Medical Association ("AMA") Guides,²² the applicant does not refer to these conditions at all. Furthermore, while the AMA Guides were addressed by the respondent, the applicant did not file any reply submissions to comment on this issue.

18Granted, the AMA Guides criteria regarding chronic pain are not incorporated into the Schedule, so I am not bound to utilize them as anything but a useful interpretive tool. The AMA Guides do not provide the only standard for measuring chronic pain. Other medical evidence can substitute for an analysis guided by the principles in the AMA Guides. Still, the applicant must provide credible medical evidence to prove that the subject accident caused chronic pain.

19The applicant here relies entirely on short comments in the submitted CNRs to make a case for a chronic pain diagnosis. No proper analysis or evidence of an examination has been provided by the applicant that substantiates a diagnosis of chronic pain. Instead, the applicant cites the applicant's self-reported complaints of ongoing pain that Dr. Woo noted in his CNRs, as shown above, along with brief notations from chiropractors Dr. Jay and Dr. Hylton. The most extensive commentary on chronic pain in the entirety of the CNRs submitted by the applicant consists of two lines in the "Barriers to Recovery" section of the OCF-18 filed by Dr. Jay on July 25, 2018: "Chronic pain, inadequate care, in the acute phase of treatment, single parent, school and work demands, multiple injuries, neurological symptoms (headache, memory issues and tinnitus), psychological yellow flags (irritability and anger while driving) and difficulty sleeping."²³

20The respondent submits that these chronic pain assessments are not credible as they were made by chiropractors, not chronic pain experts. I agree with this submission. There is also no evidence in the CNRs submitted that any sort of extensive examination was ever conducted with regard to chronic pain, by chiropractors or anyone else. A chronic pain assessment was recommended in the OCF-18 completed by Dr. Hylton on October 27, 2020, but this plan is not at dispute here, and no evidence has been submitted that the assessment was ever completed.²⁴

21Much the same can be said regarding the psychological evidence submitted by the applicant. Nothing has been provided indicating that the applicant was ever examined by a psychological expert. All of the CNR notations regarding her psychological impairments were provided by her family physician, chiropractors, and physical therapy specialists with no apparent psychological training and no ability to make such diagnoses. Much of these diagnoses also appear to be solely the result of the applicant's self-reporting. As a result, I place no weight on their conclusions.

22Furthermore, treatment plans on their own are not compelling evidence in support of treatment. While they can be useful in helping assess an applicant's medical status, they must be accompanied by compelling, contemporaneous medical evidence. In this instance, such persuasive evidence is not present.

23In contrast, I place significant weight on the IEs conducted by both Dr. Lam and Dr. Saunders. These are the sole expert reports directly related to an assessment of the applicant's physical and psychological injuries. As has been noted above, Dr. Lam clearly identified the applicant as having sustained only soft-tissue injuries that could be treated effectively within the MIG. Dr. Saunders further noted an absence of any psychological impairment that would warrant removal from the MIG. Both physicians also examined the applicant twice with the examinations spread over significant lengths of time. This provided the physicians the opportunity to observe the applicant at different stages of her recovery and gain a better understanding of her evolving condition. This thoroughness significantly bolsters the credibility of these IE assessments.

24Overall, the totality of the evidence submitted by the applicant is not enough to establish that her physical and psychological impairments cannot be treated within the MIG. The CNRs of Dr. Woo, along with the OCF-18s of Dr. Jay and Dr. Hylton, simply do not provide enough evidence to support a finding of a psychological impairment or chronic pain with a functional impairment, or of the presence of a pre-existing condition preventing maximal medical recovery under the MIG. Evidence provided by the respondent through the IEs of Dr. Lam and Dr. Saunders is far more persuasive, due to their areas of expertise, the thorough nature of their multiple assessments, and their definitive conclusions that the applicant could be treated effectively within the MIG.

Mackenzie Rehabilitation Clinic OCF-18 ($2,569.40)

25As the $3,500.00 MIG treatment limit has been exhausted, no additional analysis is required to determine if the treatment plan in dispute is reasonable and necessary pursuant to the Schedule.

26Given that there is no overdue payment of benefits, it follows that the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

CONCLUSION AND ORDER

27For the above reasons, the application is dismissed and I find that:

(i) The applicant's injuries are predominantly minor in nature and therefore subject to treatment within the MIG.

(ii) The applicant is not entitled to the treatment plan in dispute, as she has not proven it to be reasonable and necessary.

(iii) The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10 (as amended).
2. 2O. Reg. 34/10 (as amended) s. 3(1), 18(1).
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Applicant's Submissions, Tabs 3 and 4 (Markham Stouffville Hospital Records).
5. 5Ibid. Tab 6 (Records of Dr. Woo).
6. 6Ibid. Tab 6, pages 39-40.
7. 7Ibid. Tab 6, page 39.
8. 8Ibid. Tab 6, pages 41-45.
9. 9Ibid. Tab 7, pages 48-83 (Records of Pickering Physiotherapy Institute).
10. 10Ibid. Tab 7, page 50.
11. 11Ibid. Tab 7, pages 48-83.
12. 12Ibid. Tab 7, pages 78 and 82, respectively.
13. 13Ibid. Tab 10, page 92 (OCF-3 dated May 24, 2018).
14. 14Ibid. Tab 10, Tab 17, pages 192-199 (OCF-18 dated May 24, 2018).
15. 15Ibid. Tab 11 (OCF-18 dated July 25, 2018).
16. 16Ibid. Tab 12, pages 101-145 (Records of Spine Health Care Clinic).
17. 17Ibid. Tabs 13 and 14 (IE Reports of Dr. Saunders).
18. 18Ibid. Tab 13, page 154; Tab 14, pages 163-164.
19. 19Ibid. Tabs 15 and 16 (IE Reports of Dr. Lam).
20. 20Ibid. Tab 15, page 174; Tab 16, pages 189-191.
21. 21Ibid.
22. 22American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
23. 23Ibid. Tab 11, page 98 (Records of Dr. Jay).
24. 24Ibid. Tab 12, pages 110-120 (Records of Spine Health Care Clinic).