Chan v. Unifund Assurance Company, 2023 CanLII 40136

Citation: Chan v. Unifund Assurance Company, 2023 ONLAT 21-004667/AABS

Licence Appeal Tribunal File Number: 21-004667/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:

Samuel Chan

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Christopher Evans

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Symone Marlowe, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Samuel Chan, the applicant, was involved in an automobile accident on February 21, 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 Unifund Assurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was driving with his son when they collided with a car that unexpectedly pulled out of a side street. The applicant alleges that he suffers from a psychological impairment and chronic shoulder pain, and that a pre-existing heart condition prevents him from fully recovering from his injuries.

3The applicant sought funding for psychological assessments, psychological treatment, and chiropractic treatment. The respondent refused to provide funding on the grounds that he sustained a predominantly minor injury as defined in s. 3 of the Schedule, and was therefore limited to $3,500 in medical and rehabilitation benefits and subject to treatment under the Minor Injury Guideline (the “MIG”).

4The applicant seeks determinations that he is not limited to $3,500 in medical and rehabilitation benefits, that he is entitled to the benefits in dispute with interest, and that he is entitled to an award under s. 10 of Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits.

5The applicant’s son, Johnson Chan, brought an application (file no. 21-004665/AABS) with respect to the same accident.

ISSUES

6The issues in dispute are:

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 limit and under the MIG?

2. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 21, 2019 to February 21, 2021?

3. Is the applicant entitled to the following medical benefits:

   i. $2,925 for chiropractic treatment, proposed by Dr. Dan Shlepakov in a treatment plan/OCF-18 (“plan”) denied on June 11, 2019;

   ii. $3,963.64 for psychological treatment, proposed by Dr. Harinder Mrahar in a plan denied on June 20, 2019;

   iii. $2,500.64 for chiropractic treatment, proposed by Dr. Dan Shlepakov in a plan denied on August 21, 2019;

   iv. $2,193.60 for chiropractic treatment, proposed by Dr. Dan Shlepakov in a plan denied on October 11, 2019;

   v. $1,923.04 for chiropractic treatment, proposed by Dr. Dan Shlepakov in a plan denied on November 29, 2019;

   vi. $3,710.00 for psychological treatment, proposed by Dr. Svetlana Gabidulina in a plan denied on February 24, 2020; and

   vii. $2,004.80 for chiropractic treatment, proposed by Dr. Rudi Chan in a plan denied on February 24, 2020?

4. Is the applicant entitled to psychological assessments proposed by Dr. Harinder Mrahar in the following amounts:

   i. $1,995.00, proposed in a plan denied on June 11, 2019; and

   ii. $3,558.64, proposed in a plan denied on November 11, 2019?

5. Is the respondent liable to pay an award under s. 10 of 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 did not address the claim for a non-earner benefit in his submissions.

RESULT

8The applicant has not established that he sustained a non-minor injury, or that he has a documented pre-existing medical condition that will prevent him from achieving maximal medical recovery subject to the $3,500 limit on benefits or treatment under the MIG. He has therefore not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

9The applicant is not entitled to a non-earner benefit.

10The applicant is not entitled to the benefits in dispute, interest, or an award under s. 10 of Regulation 664.

DID THE APPLICANT SUSTAIN A PREDOMINANTLY MINOR INJURY SUBJECT TO TREATMENT UNDER THE $3,500 LIMIT ON MEDICAL AND REHABILITATION BENEFITS?

11I find that the applicant has not established that he sustained a non-minor injury or that his pre-existing medical condition exempts him from the $3,500 limit on medical and rehabilitation benefits.

12Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG. A minor injury is defined in s. 3 of the Schedule 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.

13Section 18(2) of the Schedule provides that an insured person with a predominantly minor injury is not subject to the $3,500 limit on benefits if they have a documented pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG.

14The onus is on the applicant to prove that his injuries are not subject to treatment under the $3,500 limit on benefits and the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

15The applicant visited his family doctor on February 25, 2019, four days after the accident. His doctor diagnosed him with strains of his neck, shoulder, and back, which are minor injuries as defined in s. 3 of the Schedule. He alleges that he suffers from two non-minor injuries: a psychological impairment and chronic pain in his shoulder. He also argues that his chronic obstructive pulmonary disease is a pre-existing medical condition within the meaning of s. 18(2).

Psychological Impairment

16The definition of minor injury in s. 3 of the Schedule does not include a psychological impairment, but it does include the psychological sequelae of a minor injury. This requires me to determine whether the applicant’s psychological symptoms are secondary to his physical injuries or a free-standing impairment.

17The applicant relies on an assessment by Ms. A. Sekhar, a psychologist. She diagnosed the applicant with adjustment disorder with mixed anxiety and depression. Under the International Classification of Diseases, 10th revision, which she cited in her report, adjustment disorder is defined as “subjective distress and emotional disturbance, usually interfering with social functioning and performance, arising in the period of adaptation to a significant life change or a stressful life event.” Ms. Sekhar noted that the applicant reported disturbed sleep, appetite, and mood, and scored in the moderate range for symptoms of depression and anxiety on two diagnostic tests.

18The respondent relies on three psychological independent assessments: two by Dr. G. Lau and a third by Dr. S. Mor. Dr. Lau and Dr. Mor opined that the applicant did not suffer from any mental health issues warranting a diagnosis.

19Reading Ms. Sekhar’s and Dr. Lau’s reports together, I find that the applicant’s mental health issues are sequelae of his ongoing shoulder pain, and do not constitute a psychological impairment:

1. The applicant reported to Ms. Sekhar that pain was the cause of his disturbed sleep and the resulting fatigue and reduced appetite.

2. The applicant’s mood issues were rooted in his concern about his physical injuries and their long-term implications. In particular, he ruminated about the prospect that he may not recover and become dependant on others, and his lack of control over his health caused him to feel sad, upset, and worried.

3. The applicant reported no other symptoms of depression to Ms. Sekhar aside from being irritable, frustrated, and annoyed with himself. He denied experiencing any symptoms of depression to Dr. Lau, including irritability or difficulty regulating his emotions.

4. The applicant did not report significant changes in his lifestyle due to mood issues:

   i. He reported to Ms. Sekhar that he continued to get together with friends, although pain interfered with his ability to enjoy those occasions;

   ii. He reported to Ms. Sekhar and Dr. Lau that he went to the gym five times per week before the accident. He reported to Ms. Sekhar that he continued going after the accident to a lesser extent, and to Dr. Lau that he went five or six times per week until the COVID-19 pandemic lockdown;

   iii. He reported experiencing driving anxiety to Ms. Sekhar, but did not score as symptomatic on a diagnostic test she administered. He denied experiencing driving anxiety to Dr. Lau; and

   iv. He reported to Ms. Sekhar that he is easily startled by loud noises when he leaves home and becomes nervous and feels unsafe. However, he did not indicate that this had resulted in any lifestyle changes, and he did not report any anxiety-related issues to Dr. Lau.

5. At Dr. Lau’s assessment on July 10, 2019, the applicant reported that pain was his primary health issue, and that he saw no need for psychological treatment because he did not have any psychological problems.

20Dr. Mor opined that the applicant had no clinically-significant psychological impairment related to the accident. While this is consistent with my conclusion, I do not rely on Dr. Mor’s assessment because there are reasons to doubt the reliability of the information the applicant provided. Dr. Mor found that while the applicant was forthcoming, his answers were tangential and inconsistent, including his description of his current mental health. To at least some extent, this may be attributable to the passage of more than two years since the accident and the fact that the assessment was done through a Cantonese interpreter.

21Dr. Lau stated in his report that because he spoke Cantonese, he spoke directly with the applicant rather than through an interpreter. The applicant argues that Dr. Lau’s opinion should not be accepted because he did not specify in the “evaluator profile” section of his reports that he was fluent and qualified to perform assessments in Cantonese. I do not accept this argument. Dr. Lau made this statement in the “behavioural observations” section of his reports. This was a logical place to do so because it flowed from his observation that the applicant’s speech was clear and fluid. I am not prepared to infer that Dr. Lau lied about speaking Cantonese because he did not list his language proficiency with his professional qualifications in the “evaluator profile” section of his reports. I would think that it was good Dr. Lau could speak with the applicant directly rather than through an interpreter. This likely helped Dr. Lau establish a rapport and ensure that he was obtaining accurate information.

Chronic Pain

22I find that the applicant has not established that he suffers from chronic pain that meets the test for a non-minor injury.

23The applicant must prove that he suffers from chronic pain syndrome or pain that is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability: 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 28. His submissions refer in passing to “left shoulder functional limitations” but do not identify what those limitations are. The assessors’ reports note that he had difficulty lifting heavy objects and participated less in household tasks such as laundry or cleaning. This sparse evidence is not sufficient to meet his burden of proof.

Pre-existing Medical Condition

24I find that the applicant has not established that he suffers from a pre-existing medical condition that will prevent him from achieving maximal medical recovery subject to the $3,500 limit on medical and rehabilitation benefits and treatment under the MIG.

25The applicant was diagnosed with chronic obstructive pulmonary disease (“COPD”) before the accident and receives ongoing treatment from a cardiologist and a respirologist. He submits that this is a documented pre-existing medical condition that will prevent him from achieving maximal medical recovery if he is subjected to the $3,500 limit on benefits or treatment under the MIG. He filed a printout from the Mayo Clinic’s website that lists the typical symptoms of this condition, which include shortness of breath (especially during physical activities) and lack of energy. He argues that coupled with his advanced age, this condition will make it more difficult for him to participate in rehabilitation activities.

26The respondent concedes that the applicant’s COPD is a documented pre-existing medical condition, but submits that the applicant has not proved that this condition will impair his recovery from his minor injuries subject to the $3,500 limit or treatment under the MIG. It argues that none of the applicant’s treating physicians have expressed this concern and that, to the contrary, they have found him to be in good health since the accident.

27I find that the applicant has not established that his COPD has impaired or will impair his recovery from his injuries. In clinical notes following the accident, his cardiologist observed him to be “completely asymptomatic” and “stable from a cardiac perspective,” and his respirologist observed that he has “done well,” there have been no exacerbations of his condition, and his general health has been good. None of their clinical notes mentions his injuries from the accident or states that his COPD may affect his recovery. The website printout listing the typical symptoms of COPD does not shed any light on what symptoms the applicant experiences and how they affect other aspects of his health. I prefer the evidence of the applicant’s treating physicians because it is specific to the applicant and because they are medical professionals qualified to assess his condition.

Conclusion

28The applicant has not established that he sustained a non-minor injury, or that his COPD is a pre-existing medical condition that will prevent him from achieving maximal medical recovery subject to the $3,500 limit or treatment under the MIG. He therefore has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

IS THE APPLICANT ENTITLED TO A NON-EARNER BENEFIT?

29As the applicant’s submissions do not address his claim for a non-earner benefit, he has not met his onus of proving that he is entitled to this benefit.

IS THE APPLICANT ENTITLED TO THE BENEFITS IN DISPUTE AND INTEREST?

30As the parties have not indicated that there are any benefits remaining under the $3,500 limit, it is unnecessary to consider whether the benefits in dispute are reasonable and necessary.

IS THE APPLICANT ENTITLED TO AN AWARD?

31Section 10 of Regulation 664 states that in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award if the respondent unreasonably withheld or delayed payments.

32As the applicant is not entitled to the benefits in dispute or interest, he is not entitled to an award.

ORDER

33The applicant has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

34The applicant is not entitled to a non-earner benefit.

35The applicant is not entitled to the benefits in dispute, interest, or an award under s. 10 of Regulation 664.

36The application is dismissed.