Amarjit Hans v. Unifund Assurance Company, 2023 CanLII 101092

Citation: Hans v. Unifund Assurance Company, 2023 ONLAT 21-013056/AABS

Licence Appeal Tribunal File Number: 21-013056/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:

Amarjit Hans

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Elena Pelz, Counsel

For the Respondent: Modasir Rajabali, Counsel

HEARD: By way of written submissions

OVERVIEW

1Amarjit Hans, the applicant, was involved in an automobile accident on August 9, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. 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?

ii. Is the applicant entitled to $3,472.53 for physiotherapy services, proposed by Prime HealthCare in a treatment plan (“OCF-18”) dated September 25, 2019?

iii. Is the applicant entitled to $2,000.00 for an attendant care needs assessment, proposed by Prime HealthCare in an OCF-18 dated November 11, 2019?

iv. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Prime HealthCare in an OCF-18 dated October 22, 2019?

v. Is the applicant entitled to $807.93 ($2,304.06 less $1,496.13 approved) for physiotherapy services, proposed by Prime HealthCare in an OCF-18 dated January 9, 2020?

vi. Is the applicant entitled to $4,055.69 for psychological services, proposed by Prime HealthCare in an OCF-18 dated January 14, 2020?

vii. Is the applicant entitled to $1,693.42 for physiotherapy services, proposed by Prime HealthCare in an OCF-18 dated February 19, 2020?

viii. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Prime HealthCare in an OCF-18 dated February 21, 2020?

ix. Is the applicant entitled to $9,024.34 for physiotherapy services, proposed by Prime HealthCare in an OCF-18 dated December 15, 2020?

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

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG; and

ii. The applicant is not entitled to the treatment plans in dispute or interest.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”

5An insured person 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.

6The applicant submits that she should be removed from the MIG on the basis of psychological impairments and chronic pain.

The applicant has not established a psychological impairment warranting removal from the MIG

7The applicant submits that she should be removed from the MIG, as she has developed accident-related psychological impairments. To establish her claim, she relies on the s. 25 psychological assessment of Dr. Andrew Shaul, dated December 10, 2019. Dr Shaul conducted a clinical interview and diagnostic testing, and diagnosed the applicant with an adjustment disorder, somatic symptom disorder and specific phobia. The applicant further submits that she reported psychological symptoms post-accident, to her family physician, Dr. Varughese.

8The respondent disputes that the applicant has sustained accident-related psychological impairments. It relies on its s. 44 insurer’s examination (“IE”) report of Dr. Martha McKay, psychologist, dated December 31, 2019, with addenda dated February 18, 2020, February 12, 2021 and March 20, 2023. Dr. McKay found that both in the clinical interview and in psychometric tests, the applicant did not meet the diagnostic threshold for any DSM-V diagnosis.

9I find that the applicant has not met her onus to prove an accident-related psychological impairment warranting removal from the MIG.

10The medical record does not establish that the applicant reported ongoing psychological symptoms after the subject accident. The clinical notes and records (“CNRs”) of Dr. Varughese indicate that soon after the accident, on September 16, 2019, the applicant reported difficulty sleeping, anxiety when driving and nightmares. However, the applicant does not direct me to any other CNR entry in the years post-accident, where she continued to report such psychological symptoms to Dr. Varughese. Despite attending at Dr. Varughese’s office a number of times from 2019 to 2022, the family physician’s records do not indicate that the applicant repeated complaints of psychological symptoms, or sought any referral for psychological treatment or medication for psychological impairments.

11Although the applicant relies in large part on the s. 25 assessment of Dr. Shaul, I note that the assessment was conducted on November 18, 2019, only a few months after the accident. At this point, the applicant would be expected to experience acute psychological symptoms post-accident. However, the medical record does not indicate any subsequent evidence supporting a claim of ongoing psychological impairments.

12Moreover, in terms of the documentation reviewed while rendering his assessment, Dr. Shaul had only reviewed an OCF-3 and OCF-18, both dated September 6, 2019. As such, Dr. Shaul did not assess the full medical record when coming to his conclusions. In contrast, the respondent’s assessor, Dr. McKay in her report dated December 31, 2019, and subsequent addenda dated February 18, 2020, February 12, 2021 and March 20, 2023 considered additional documentation, including hospital records, assessments, CNRs and the OCF-18 and OCF-3 forms.

13I further find that Dr. McKay’s findings are supported by the medical record. Her conclusion that the applicant did not report symptoms that would meet the full DSM-V diagnostic threshold for any form of post-traumatic stress disorder, depressive disorder, or anxiety disorder, is reflected in the CNRs of Dr. Varughese, which did not disclose ongoing psychological complaints.

14As such, I find that the applicant has not established accident-related psychological impairments that warrant removal from the MIG.

The applicant has not established chronic pain warranting removal from the MIG

15The applicant submits that she has developed chronic neck, shoulder, lower back and left hip pain and chronic headaches, as a result of the subject accident. She relies on the CNRs of her family physician Dr. Varughese, which detail her ongoing pain complaints post-accident. The applicant further submits that diagnostic imaging of her back showed numerous disc protrusions and annular tearing and bilateral foraminal stenosis. As a result of these impairments and ongoing pain, the applicant submits that she was referred to a low back clinic. The applicant further relies on the chronic pain assessment report of Dr. Grigory Karmy, who diagnosed the applicant with a number of impairments, including chronic pain syndrome, chronic mechanical shoulder, neck, lower back and left hip pain.

16The respondent disputes that the applicant has developed chronic pain. It contends that the diagnostic imaging does not establish accident-related impairments, but rather, pre-existing conditions which do not prevent the applicant from achieving maximum recovery under the MIG. The respondent further submits that the applicant has not established that she has sustained a functional impairment as a result of the accident, or met the criteria of the American Medical Association’s (“AMA”) Guides for a diagnosis of chronic pain. It relies on the IE report of Dr. Roger Lam, GP, dated December 31, 2019 and addenda dated April 30 2020, February 12, 2021 and March 20, 2023, to establish its claim that the applicant has not established impairments warranting removal from the MIG.

17I find that the applicant has not met her onus of establishing pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG.

18Although the CNRs of Dr. Varughese indicate that the applicant consistently reported pain on the left side of her body and lower back in the initial months after the accident, from 2020 to 2022 the applicant did not report such consistent pain complaints. In 2020, the applicant reported pain to Dr. Varughese once, on June 29, 2020, complaining that she was not able to lift weights as she could pre-accident. However, she reported that she still did yoga and walked her dog. The applicant does not direct me to another complaint until December 2, 2021, a year and a half later. The next pain complaint that I have been directed to was almost another full year later, on September 8, 2022. Although it appears that the applicant had attended a low back pain clinic on December 2, 2021, I have not been provided with the CNRs from this facility.

19Further, I agree with the respondent that the applicant has not led sufficient evidence of functional impairment stemming from accident-related pain. The applicant returned to work two weeks after the accident as a machine operator. Although she argues that she had “significant difficulties fulfilling her pre-accident job responsibilities”, no objective evidence of workplace modification or restrictions has been provided. In addition, in the December 2, 2021 CNR entry, Dr. Varughese noted that the applicant continues to be active in her job, often on her feet. While she reported that she “occasionally”, sometimes once a day, experienced a sharp pain in her back and side, Dr. Varughese reported that this was fleeting and self-resolved.

20The applicant also submits that she has had to restrict her housekeeping duties and curtail all of her hobbies and recreational activities. However, the applicant has reported resuming a number of household chores. She reported to Dr. McKay, that she continued to contribute to household chores, but has reduced some of them, such as stopping laundry and cleaning. With respect to recreational activities, although she submits that she curtailed all recreational activities, I note Dr. Varughese’s CNR entry dated June 29, 2020, where the applicant reported that she still did yoga and walked her dog.

21Further, I agree with the respondent that the applicant has not established that she has met three out of the six AMA Guides criteria for establishing chronic pain. There is no evidence of abuse or over-dependence on prescription drugs, rather the applicant has only reported using Advil as needed. Similarly, the applicant has not led sufficient evidence of excessive dependence on healthcare providers, with only intermittent doctor’s visits throughout 2020-2022 for accident-related pain. Although she submits that she is dependant on family for all of her chores, the applicant has reported to assessors that she has resumed driving, light housekeeping and cooking and surveillance evidence showed the respondent shopping and carrying multiple bags.

22With respect to the remaining AMA criteria, the applicant has not led any evidence of secondary physical deconditioning. As previously noted, I also find that the applicant has not established a withdrawal from work, recreation or other social contacts or a failure to restore pre-injury function sufficient to pursue work, family or recreational needs. Although the applicant submits that she has sustained psychosocial sequelae after the accident, as previously noted, I preferred the respondent’s psychological IE assessment, which found that the applicant did not meet the diagnostic threshold for any DSM-V diagnosis. However, even if the applicant establishes development of psychosocial sequalae, this would only establish one out of six stipulated AMA Guides criteria.

23As such, when comparing the assessment report of Dr. Karmy to that of the respondent’s assessor Dr. Lam, I prefer Dr. Lam’s report, as his findings of limited functional impairment are consistent with the objective medical record.

24Given the foregoing, I find that the applicant has not established that she has developed accident-related chronic pain warranting removal from the MIG.

25The parties have confirmed that only a nominal amount remains under the MIG limit of $3,500.00 for medical and rehabilitation benefits. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

26Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

27As no benefits are overdue, no interest is payable under s. 51.

Costs

28In its submissions, the respondent requests costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure. However, I agree with the applicant that respondent did not set out any specific reasons for the request, other than a general statement that the applicant lacked “evidentiary support for her position”.

29The respondent has not made any submissions on how the test for costs set out in Rule 19 has been met in this case. It provides no particulars of conduct by the respondent that would warrant an award of costs. As such I find that the respondent has failed to establish unreasonable, frivolous, vexatious or bad faith conduct on the part of the applicant and I accordingly deny the request for costs.

ORDER

30For the reasons set out above, I find that:

(i) The applicant’s injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans;

(iii) The applicant is not entitled to interest; and

(iv) The respondent is not entitled to costs.

31The application is dismissed.