LAT 20-008227/AABS

Licence Appeal Tribunal File Number: 20-008227/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:

Vijayam Vimalarajee

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Ben Azimi, Counsel

For the Respondent:

Peter Yoo, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Vijayam Vimalarajee (“V.V.”), the applicant, was involved in an automobile accident on May 2, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). V.V. was denied benefits by the respondent, Unifund, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue in dispute are:

i. Are V.V.’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 (the “MIG”)? The parties agree the MIG limits have not been exhausted and at the time of the case conference, $3,300.00 was paid to date within the MIG limits.

ii. Is V.V. entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from May 9, 2018 to date and ongoing?

iii. Are the medical benefits recommended by Aqua Wellness Centre reasonable and necessary as follows:

i. $4,246.45 for chiropractic treatment in a treatment plan (OCF-18) dated July 20, 2018;

ii. $2,450.00 for chiropractic treatment in an OCF-18 dated November 27, 2018; and

iii. $2,250.00 for chiropractic treatment in an OCF-18 dated January 15, 2019?

iv. Is Unifund liable to pay an award under s. 10 of O. Reg 664 because it unreasonably withheld or delayed payments to V.V.?

v. Is V.V. entitled to interest on any overdue payment of benefits?

RESULT

3V.V. has not demonstrated that her accident-related impairments warrant removal from the MIG.

4The disputed OCF-18s are not reasonable and necessary and no interest is payable.

5V.V. is not entitled to payment of an IRB as she has not demonstrated she has a substantial inability to perform the essential tasks of her employment for the period of May 9, 2018 to date and ongoing. Accordingly, V.V. has not met the post-104 test for IRB eligibility.

6V.V. is not entitled to an award.

BACKGROUND

Procedural History

7V.V. submits that Unifund failed to comply with s. 36 of the Schedule in responding to the Application for Accident Benefits (OCF-1) and is therefore obligated to pay the IRB.

8Section 36 outlines the process for claiming a IRB. Section 36(2) states that an insured must submit a completed Application for Accident Benefits (OCF-1) and Disability Certificate (OCF-3) with their application for a specified benefit pursuant to s. 32. Section 36(3) sets out the entitlement period for the IRB once the completed OCF-3 is received: essentially, an insured who fails to submit a completed application (OCF-1 and OCF-3), is not entitled to an IRB for any period before it is submitted.

9Unifund submits that V.V. was provided with an Accident Benefits application package on May 9, 2018. On June 26, 2018, Unifund advised V.V. that it had not received a completed OCF-1 and requested that it be submitted in order to proceed with her claim.

10On July 3, 2018, Unifund acknowledged receipt of the OCF-3 (dated June 8, 2018) received June 22, 2018. Unifund further advised that the OCF-1 remained outstanding, and it was finally received on July 4, 2018. Since the OCF-3 indicated entitlement to both the non-earner benefit (“NEB”) and IRB, Unifund requested an Election of Benefits form (OCF-10) be completed indicating which specified benefit, NEB or IRB, that V.V. was electing to receive.

11On July 30, 2018, Unifund acknowledged receipt of the OCF-10 indicating that V.V. had elected to receive IRBs. Unifund advised V.V. that in accordance with s. 36(4) of the Schedule, it was providing notice in response to the claim for IRBs. Unifund further advised that it had not received compelling medical evidence that V.V. sustained injuries that were not predominantly minor, and that insurer examinations were being arranged to determine entitlement to IRBs.

12I agree with Unifund that any delays in addressing V.V.’s entitlement to IRBs, were her doing. Section 36(2) of the Schedule requires that an application for a specified benefit is considered complete when both the OCF-1 and OCF-3 are submitted. V.V. did not meet this requirement until July 4, 2018, when the OCF-1 was submitted. Unifund responded within the 10-business daytime period, on July 13, 2018, when it requested the OCF-10 to determine which specified benefit, V.V. intended to apply for.

13On July 30, 2018 Unifund acknowledged receipt of the OCF-10 dated July 26, 2018and advised that it was responding in accordance with s. 36(4) of the Schedule, as required. V.V. was further advised that insurer examinations (“IEs”) were being arranged to determine entitlement to IRBs. The July 30, 2018 notice was provided within four days of receiving the OCF-10, which satisfies the requirements under s. 36(4)(b) of the Schedule.

14On August 7, 2018, details of the IEs were provided to V.V., with the IEs scheduled for August 29, 2018 and September 11, 2018 (one IE was rescheduled to September 19, 2018. On October 15, 2018, Unifund notified V.V. that based on its IE reports, she does not meet the test for IRBs. On October 25, 2018, Unifund advised that based on the result of the IEs, her injuries fall within the MIG.

15Accordingly, I find that Unifund’s notices complied with the requirements under s. 36 of the Schedule, and the non-compliance provisions do not apply.

ANALYSIS

Applicability of the MIG

16Section 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.

V.V. suffered predominantly minor injuries as a result of the accident

17I agree with Unifund and find that V.V. suffered predominantly minor injuries as a result of the accident that do not warrant removal from the MIG. The injuries listed in the June 8, 2018 OCF-3 were identified as dislocation, sprain and strain of joints and ligaments of the shoulder girdle and knee, injury of muscle and tendon at forearm level, sprain and strain of lumbar spine and myalgia. I was not directed to any evidence submitted to confirm the dislocation. There is no evidence on file that any of her physical accident-related injures should be considered outside the definition of a minor injury under s. 3(1). Further, there is no diagnostic records that suggest there was a complete tear or fracture that would remove her from the MIG.

18V.V. first saw her family physician on June 2, 2018, one-month post-accident. She presented with left elbow ache and being upset about the accident. On August 28, 2018, V.V. presented with complaints of decreased sleep due to the accident. Subsequent to this visit, is a November 14, 2019 visit (she reported dizziness); January 18, 2020 (she reported headaches); March 14, 2019 (request to get checked for chronic illness); and July 2, 2020 (she reported bilateral leg swelling).

19Unifund submits that the medical evidence supports that V.V. sustained soft tissue injuries that fall within the MIG. I agree.

20V.V. filled one prescription for Naproxen and Escitalopram on August 28, 2029, and one prescription for Hydrocodone on September 8, 2018. It has been more than three years since she filled a prescription for any accident-related condition. V.V. has not been diagnosed with chronic pain or referred to any chronic pain facilities; nor has she been diagnosed with any formal psychological impairment. There is no evidence that she has been referred to any type of specialist to address her physical or psychological complaints. She has not sought treatment from any psychological specialist.

21For these reasons, I find that V.V. has failed to demonstrate that her accident- related injuries require removal from and treatment beyond the MIG limit. However, there remains $200.00 under the MIG limit, therefore, V.V. is free to seek treatment up to the $3,500.00 limit.

Is V.V. entitled to an IRB?

22V.V.’s submissions on the IRB issue centre around Unifund’s alleged non- compliance with s. 36 of the Schedule. Having found that Unifund complied with the s. 36 requirements, I find that Unifund is not required to pay the IRB due to non-compliance.

23V.V.’s submissions fail to address whether she has suffered a substantial inability to complete the essential tasks of her employment. She does not direct me to any evidence that support her claim for an IRB.

24Accordingly, I find that V.V. is not entitled to payment of an IRB as she has not demonstrated a substantial inability to perform the essential tasks of her employment for the period of May 9, 2018 to date and ongoing. I note that V.V. also did not submit any evidence addressing post-104 IRB entitlement.

Are the OCF-18s reasonable and necessary?

25In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

26V.V. has failed to demonstrate that the disputed OCF-18s are reasonable and necessary.

27V.V. submits that “based on her argument herein that her injuries are non-minor, her treatment plan fall within the applicable limit of $65,000.” Despite her submission that her ongoing reports of “leg, ankle and foot swelling, chest ache, abdominal and back pain, as well as headaches, anxiety and dizziness all require the rehabilitative treatment, submissions are not evidence. V.V. mainly relies on the OCF-18s, which need to be supported by contemporaneous, objective evidence. I am not directed to such evidence.

28For these reasons, I find the OCF-18s are not reasonable and necessary or payable beyond the MIG limits.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

30Having found that V.V.’s injuries are predominantly minor and fall within the MIG, and the limit has not been exhausted, V.V. may be entitled to receive treatment up to the $3,500.00 limit by following the protocol set out in the MIG.

Award

31V.V. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

32Having found that V.V.’s injuries fall within the MIG, and that she is not entitled to any of the claimed benefits, it follows that Unifund cannot have been found to have unreasonably withheld or delayed payment of benefits.

33As such, an award is not payable.

ORDER

34V.V. has not demonstrated that her accident-related impairments warrant removal from the MIG. The disputed OCF-18s are not reasonable and necessary and no interest is payable. V.V. is not entitled to payment of an IRB as she has not demonstrated a substantial inability to perform the essential tasks of her employment for the period May 9, 2018, to date and ongoing.

35Despite this, the MIG limit has not been exhausted, accordingly, V.V. may be able to receive treatment up to the $3,500.00 limit under the MIG. Interest is payable on any outstanding payment of benefits for approved treatment up to the remaining MIG limit, in accordance with s. 51 of the Schedule.