Citation and File Number

Citation: Chan v. Unifund Assurance Company, 2023 ONLAT 21-004665/AABS

Licence Appeal Tribunal File Number: 21-004665/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.

Parties

Between:

Johnson Chan

Applicant

and

Unifund Assurance Company

Respondent

Decision

ADJUDICATOR: Christopher Evans

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Symone Marlowe, Counsel Priyanka Monpara, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Johnson 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 father when they collided with a car that unexpectedly pulled out of a side street. The applicant alleges that he sustained a psychological impairment and suffered from back pain due to the accident.

3The applicant sought funding for a psychological assessment, 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.

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 the Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits.

5The applicant's father, Samuel Chan, brought an application (file no. 21-004667/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 Minor Injury Guideline?
2. Is the applicant entitled to $1,995.00 for a psychological assessment, proposed by Dr. Harinder Mrahar in a treatment plan/OCF-18 ("plan") dated April 29, 2019?
3. Is the applicant entitled to the following medical benefits: i. $3,963.64 for psychological treatment, proposed by Dr. Harinder Mrahar in a plan dated May 27, 2019; and ii. $2,907.68 for chiropractic treatment, proposed by Dr. Dan Shlepakov in a plan dated June 3, 2019?
4. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7The applicant sustained a psychological impairment due to the accident. As this is a non-minor injury, he is not limited to $3,500 in medical and rehabilitation benefits.

8The applicant is entitled to the cost of the psychological assessment, partly entitled to the proposed psychological and chiropractic treatment, and entitled to interest.

9The applicant is not entitled to an award under s. 10 of Regulation 664.

DID THE APPLICANT SUSTAIN A PREDOMINANTLY MINOR INJURY?

10I find that the applicant sustained a psychological impairment, which is not a minor injury as defined in s. 3 of the Schedule.

11Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is entitled to up to $3,500 in medical and rehabilitation benefits. 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.

12Section 18(3)(a) of the Schedule provides that an insured person who sustains a non-minor injury is entitled to up to $65,000 in benefits. The onus is on the applicant to establish that he sustained a non-minor injury: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

13On February 25, 2019—four days after the accident—the applicant visited his doctor complaining of stiffness in his neck and spine, and difficulty with prolonged sitting and standing. The family doctor's clinical note of that date (which is not entirely legible) does not state a formal diagnosis, but there is no indication that these injuries were anything other than sprains or strains, which are minor injuries as defined in s. 3 of the Schedule.

14The applicant submits that he also sustained a psychological impairment due to the accident. He relies on an assessment conducted on May 13, 2019 by Dr. H. Mrahar, a psychologist. Dr. Mrahar diagnosed him with adjustment disorder with mixed anxiety and depressed mood. Under the International Classification of Diseases, 10th revision, which Dr. Mrahar cited, 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." The applicant reported to Dr. Mrahar that he experienced back pain ranging from three to eight out of ten in intensity, low mood, low motivation, fatigue, disturbed sleep, irritability, and driving anxiety of five out of ten in intensity as a driver and eight out of ten as a passenger. The applicant scored in the range for moderately severe depressive symptoms on the Beck Depression Inventory, and in the average range for pain patients on the depression, anxiety, and somatization scales of the Pain Patient Profile.

15The respondent relies on an independent assessment conducted on August 10, 2019 by Dr. M. Schwartz, a psychologist. Dr. Schwarz opined that the applicant had some issues relating to driving anxiety, but these symptoms did not warrant a psychological diagnosis or rise to the level of a psychological impairment. Dr. Schwartz disagreed with Dr. Mrahar's diagnosis because the applicant reported milder symptoms and scored lower on the same diagnostic tests.

16I find that Dr. Mrahar's and Dr. Schwartz's findings are consistent given the passage of time between their assessments. Dr. Mrahar saw the applicant a little less than three months after the accident, and Dr. Schwartz saw him three months later. Taken together, their reports indicate that the applicant developed an adjustment disorder that attenuated over time as his pain subsided and he returned closer to his pre-accident lifestyle. Dr. Mrahar observed that the applicant's pain affected his mood, and that he was visibly upset when talking about the limitations his injuries imposed on his lifestyle. In particular, he struggled to meet the demands of his new job, did not return to pre-accident activities such as going to the gym, and isolated himself from friends and family. In contrast, the applicant reported to Dr. Schwartz that his pain had improved to the point that he described it as only "a little bit of stress." He had found chiropractic adjustment and massage therapy to be helpful and had reduced the frequency of treatment from three times per week to once per week at most. He reported continuing limitations on his pre-accident lifestyle but to a lesser extent. For example, while he reported taking more "microbreaks" at work than he should and that his job duties took a toll on his back, he was persevering and had plans to advance his career by returning to college.

17The respondent argues that applicant's subjective, self-reported complaints should not be accepted because he has made many inconsistent statements and therefore lacks credibility. Namely:

1. He told Dr. Mrahar that he lived alone at the time of the accident, but he told Dr. Schwartz roughly six months after the accident that he had been living with his girlfriend for over a year;
2. He did not report any mental health issues to his family doctor;
3. He told Dr. Schwartz that he saw a psychotherapist two or three times after the accident, but was not certain that he needed therapy;
4. He reported to Dr. Schwartz that there had been no changes in his driving behaviour or "his feelings at the wheel";
5. At Dr. Schwartz's assessment, he scored in the minimal range on the Beck Depression Inventory, and below the average range for pain patients on all three scales of the Pain Patient Profile; and
6. Dr. Schwartz stated that his score on the Personality Assessment Inventory ("PAI") should be reviewed with caution because his responses to similar items were somewhat inconsistent.

18I do not accept the submission that the applicant lacks credibility—or by extension that he is malingering—for the following reasons:

1. Dr. Schwartz opined that the applicant did have mental health issues arising from the accident. He did not deny that the applicant had the symptoms he reported to Dr. Mrahar, but found that they were milder based on the information the applicant provided to him. He did not express any concerns about malingering;
2. Given that the applicant's mental health had improved by the time of Dr. Schwartz's assessment, it is unsurprising that he would score lower on diagnostic tests and be unsure about whether he needed treatment;
3. Although the applicant did not report any driving anxiety to Dr. Schwartz in the interview component of the assessment, his responses to diagnostic tests indicated—and Dr. Schwartz accepted—that he had continuing issues;
4. On the PAI, the applicant did not score in the clinical range for any of the scales tested. According to Dr. Schwartz, his results were "suggestive of someone who is generally satisfied with themselves as they are and see little need for major changes in their behaviour." Any inconsistencies in his responses cannot be taken as feigning illness;
5. The applicant's scores on other diagnostic tests were valid. In particular, his score on a test screening for symptom exaggeration did not indicate any over-endorsement of emotional or cognitive problems;
6. The family doctor's clinical notes indicate that the focus of her treatment was the applicant's back injury. Her notes do not record that the applicant denied having any mental health issues or indicate whether this matter was discussed. I am not prepared to infer that such issues must not exist because he did not raise them; and
7. The inconsistency regarding when the applicant moved in with his girlfriend is trivial.

19I conclude that the applicant sustained a psychological impairment due to the accident. As this is a non-minor injury, he is not limited to $3,500 in medical and rehabilitation benefits.

IS THE APPLICANT ENTITLED TO THE BENEFITS IN DISPUTE?

20The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15, including the costs of assessments prepared in connection with those benefits. The onus is on the applicant to prove that the proposed services are reasonable and necessary.

Psychological Assessment and Treatment

21I find that the applicant is entitled to the cost of the psychological assessment and partly entitled to the proposed psychological treatment.

22The applicant requested funding for a psychological assessment in a treatment plan by Dr. Mrahar dated April 29, 2029. In a letter dated June 11, 2019, the respondent denied the treatment plan on the grounds that the applicant had sustained a predominantly minor injury.

23The applicant requested funding for psychological treatment in a treatment plan by Dr. Mrahar dated May 27, 2019. The treatment plan proposed 16 therapy sessions of one and a half hours, an assessment and a test, and expenses for preparing the treatment plan and "documentation support." Dr. Mrahar wrote that the treatment plan was based on the recommendations in her report. In a letter dated June 11, 2019, the respondent denied the treatment plan on the grounds that the applicant had sustained a predominantly minor injury and advised that it would commission an independent assessment, which Dr. Schwartz conducted.

24The applicant relies on Dr. Mrahar's assessment, which concluded that he sustained a psychological impairment and recommended the proposed treatment.

25The respondent relies on Dr. Schwartz's opinion that the applicant's mental health issues did not amount to a psychological impairment or warrant a diagnosis, and that the treatment recommended by Dr. Mrahar was therefore not reasonable and necessary. The respondent argues further that the applicant did not report any mental health issues to his family doctor, told Dr. Schwartz that he was unsure he needed therapy, has not produced any documentation that proves the treatment plans are reasonable and necessary, and lacks credibility.

26As I have found that the applicant sustained a psychological impairment, I find that the psychological assessment was reasonable and necessary to make a diagnosis and treatment recommendations.

27Whether the proposed psychological treatment is reasonable and necessary is a more complicated question given that the applicant had recovered substantially—although not entirely—by the time of Dr. Schwartz's assessment on August 10, 2019. He had therapy sessions on June 3 and 8, 2019. At Dr. Schwartz's assessment, he said that he obtained this treatment on the recommendation of his physiotherapist and was not certain that he needed it. He had two further sessions on September 28, 2019 and January 11, 2020. According to the therapist's notes, he reported improvements in his functioning and overall mood, but continued to struggle with overthinking and anxiety.

28Dr. Mrahar's recommendation of 16 therapy sessions was premised on her opinion that without treatment, the applicant's functioning was likely to deteriorate further. While this may have been reasonable to believe at the time, the applicant's mental health improved over the following months, and he tried therapy several times but did not continue with it. The full 16-session program recommended by Dr. Mrahar proved not to be necessary. However, it was reasonable and necessary for the applicant to give therapy a try. I find that he is entitled to the cost of the four sessions he attended.

29I am not persuaded by the respondent's submissions that the assessment and treatment are not reasonable and necessary. I addressed its argument regarding the applicant's credibility above. I need add only that Dr. Mrahar's and Dr. Schwartz's reports are the evidence that fulfills the applicant's burden of proof.

30I conclude that the applicant is entitled to $1,995.00 for the psychological assessment, and $1,010.00 in total for four sessions of psychological therapy (items 2 and 5 in part 12 of the May 27, 2019 treatment plan) and the cost of preparing the treatment plan. The applicant has not established that the other items in the May 27, 2019 treatment plan are reasonable and necessary. Given that the applicant proposed an assessment in a separate treatment plan, the assessment and test proposed in this treatment plan are duplicative. It is unclear what the item for "documentation support activity" refers to and whether it was reasonable and necessary in that amount for the applicant's four therapy sessions.

Chiropractic Treatment

31I find that the applicant is partly entitled to the proposed chiropractic treatment.

32The applicant requested funding for chiropractic treatment in a treatment plan dated June 3, 2019. The treatment plan proposed 16 treatment sessions of one and a half hours. In a letter dated June 11, 2019, the respondent denied the treatment plan on the grounds that the applicant had sustained a predominantly minor injury. It later commissioned an independent assessment by Dr. A. Naiman, a general practitioner, which occurred on November 19, 2021. In an Explanation of Benefits dated December 7, 2021, the respondent maintained the denial based on Dr. Naiman's opinion that the applicant sustained uncomplicated myofascial injuries in the accident (i.e. a sprain/strain of the thoracic spine) and that his back pain from those injuries had resolved.

33The applicant submits that Dr. Naiman's assessment should not be accepted because it was conducted almost three years after the accident. He argues that the 2019 clinical notes and records of his family doctor and treating clinic document that he had pain and limited range of movement in his spine.

34The respondent relies on Dr. Naiman's opinion and argues that the applicant's subjective complaints are insufficient to establish that the proposed treatment is reasonable and necessary, that he visited his family doctor only four times in the year following the accident, and that his family doctor did not refer him to a specialist, request diagnostic imaging of his back, or recommend physiotherapy or chiropractic treatment.

35I find that the applicant experienced ongoing back pain due to the accident. This pain was documented by his family doctor, his treating chiropractor, Dr. Mrahar, and Dr. Schwarz. He reported to Dr. Schwartz that chiropractic treatment and massage therapy had been successful at reducing his pain, and that his need for treatment gradually reduced from three sessions per week to one at most. This statement is corroborated by Scarborough Medical Centre's records, which show that the applicant received treatment from March 5, 2019 to January 11, 2020. At the beginning, sessions included 30 minutes each of chiropractic treatment, massage therapy, physiotherapy, and exercises. On May 6, 2019, the applicant discontinued massage therapy and continued with the other treatments. By the time of Dr. Schwartz's assessment on August 10, 2019, he was receiving treatment bimonthly. After September 28, 2019, he attended only one more session on January 11, 2020.

36I accept that this treatment helped the applicant recover from his injuries. I therefore find that the 12 sessions of treatment he incurred after submitting the treatment plan were reasonable and necessary. The applicant has not established that an additional four sessions would be reasonable and necessary. As he had made substantial progress by the time of Dr. Schwartz's assessment and discontinued regular therapy the following month, it appears that the treatment had run its course and was no longer necessary.

37Dr. Naiman's assessment does not shed any light on whether the 12 sessions of treatment were reasonable and necessary. It shows only that the applicant's back pain from the accident had resolved by November 2021, roughly two and a half years after the treatment plan was completed and almost three years after the accident.

38I do not accept the respondent's other arguments for the following reasons:

1. The applicant's complaint of back pain due to the accident is substantiated by his family doctor, his treatment clinic, and the assessments;
2. As discussed above, I disagree that the applicant's complaints are not credible;
3. Four doctor's visits within one year of the accident does not strike me as a suspiciously low number;
4. The family doctor's handwritten clinical notes are not entirely legible, but the clinical note of February 25, 2019 contains the notations "Physio fup" and "Massage fup". ("Fup" presumably stands for "follow up"). It appears that the family doctor recommended this treatment or at least thought that it would contribute to the applicant's recovery. The fact that she did not refer to chiropractic treatment specifically does not necessarily imply that she disagreed such treatment was appropriate; and
5. The fact that the family doctor did not refer the applicant to a specialist or order diagnostic imaging has no bearing on whether the proposed treatment was appropriate.

39I conclude that the applicant is entitled to $2,230.76 in total for 12 of the sessions proposed in the June 3, 2019 treatment plan and the cost of preparing the treatment plan.

IS THE APPLICANT ENTITLED TO AN AWARD?

40I find that the applicant is not entitled to an award.

41Section 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. Unreasonable behaviour can be seen as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate: Malitskiy v Unica Insurance Inc., 2021 ONSC 4603 (Div Ct) at para 46.

42The applicant submits that he is entitled to an award because the respondent had sufficient evidence to approve the benefits in dispute. The respondent submits that the test is not whether the insurer was simply mistaken, but whether it should have been "patently obvious" to the insurer that the benefits were payable: see 16-002346 v Unifund Assurance Company, 2017 CanLII 81583 (ON LAT) at para 29; 16-004312 v Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT) at para 58.

43I find that the applicant has only proved that the respondent was mistaken in denying benefits, and not that it engaged in unreasonable conduct meriting an award. The evidence is not so overwhelmingly strong that maintaining the denials can be described as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour.

IS THE APPLICANT ENTITLED TO INTEREST?

44The applicant is entitled to interest pursuant to s. 51 of the Schedule.

ORDER

45The applicant sustained a non-minor injury and is therefore not limited to $3,500 in medical and rehabilitation benefits.

46The applicant is entitled to the following benefits with interest:

1. $1,995.00 for the psychological assessment proposed in the April 29, 2019 treatment plan;
2. $1,010.00 for the psychological treatment proposed in the May 27, 2019 treatment plan; and
3. $2,230.76 for the chiropractic treatment proposed in the June 3, 2019 treatment plan.

47The applicant is not entitled to an award under s. 10 of Regulation 664.