Licence Appeal Tribunal
Citation: Walters v. Unifund Assurance Company, 2023 ONLAT 19-009570/AABS Licence Appeal Tribunal File Number: 19-009570/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:
Glenmore Walters Applicant
and
Unifund Assurance Company Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Rajesh Mohan, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Glenmore Walters (the "applicant") was involved in a motor vehicle accident on January 5, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Unifund Assurance Company (the "respondent") denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2The applicant claims entitlement to income replacement benefits ("IRB") and he submits that impairments sustained in the accident warrant removal from the Minor Injury Guideline ("MIG") and its $3,500.00 limit on treatment. He also claims entitlement to seven treatment plans, plus interest. Further, although the applicant submits that all of the plans are reasonable and necessary, he also argues that the respondent provided improper denials on three of them and is therefore obligated to pay for these benefits. The applicant is additionally seeking an award.
3The respondent counters that the applicant did not suffer from a substantial inability to perform the duties of his pre-accident employment and in fact told assessors that he was not working at the time of the accident. Therefore, he is not entitled to IRB. Unifund further submits that the applicant has failed to demonstrate his accident-related injuries are not predominantly minor in nature, so it maintains that he should be treated within the MIG. The respondent also argues that the applicant has achieved maximum medical recovery, so the treatment plans are not reasonable and necessary. As the respondent holds that no benefits are owing, it also denies that interest is due and that it is liable to pay an award.
4Submissions confirm that the $3,500.00 limit of the MIG has been exhausted. As a result, entitlement to any of the treatment plans in dispute requires a finding that the applicant warrants treatment outside of the MIG (barring a procedural reason that necessitates their acceptance).
ISSUES IN DISPUTE
5The following issues are in dispute:
- Is the applicant entitled to IRB of $171.63 per week from January 12, 2018 to January 5, 2020, plus interest?
- 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 of the MIG?
- Is the applicant entitled to $2,925.00 for physiotherapy services recommended by Scarborough Physiotherapy and Rehabilitation Clinic in a treatment plan/OCF-18 dated September 25, 2018?
- Is the applicant entitled to $2,925.00 for physiotherapy services recommended by Scarborough Physiotherapy and Rehabilitation Clinic in a treatment plan/OCF-18 dated June 19, 2018?
- Is the applicant entitled to $2,565.00 for physiotherapy services recommended by Scarborough Physiotherapy and Rehabilitation Clinic in a treatment plan/OCF-18 dated January 30, 2019?
- Is the applicant entitled to $2,200.00 for a chronic pain assessment recommended by Scarborough Physiotherapy and Rehabilitation Clinic in a treatment plan/OCF-18 dated December 20, 2018?
- Is the applicant entitled to $1,750.00 for a Functional Abilities Evaluation ("FAE") recommended by Scarborough Physiotherapy and Rehabilitation Clinic in a treatment plan/OCF-18 dated June 20, 2019?
- Is the applicant entitled to $2,049.18 for a psychology assessment recommended by Scarborough Physiotherapy and Rehabilitation Clinic in a treatment plan/OCF-18 dated January 14, 2019?
- Is the applicant entitled to $3,042.64 for psychological services recommended by Scarborough Physiotherapy and Rehabilitation Clinic in a treatment plan/OCF-18 dated March 7, 2019?
- Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
- Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
6Issue #9 was added by Tribunal motion order on August 9, 2021. This order also converted the previous combination hearing into a written hearing and combined files 19-009570/AABS and 21-000903/AABS into a single file that would proceed as 19-009570/AABS.
RESULT
7I find that:
i. The applicant is not entitled to IRB or interest as he has not demonstrated that he suffered from a substantial inability to perform the essential tasks of his employment during the disputed period of January 12, 2018 to January 5, 2020.
ii. The applicant has failed to demonstrate that he suffers from injuries as a result of the accident that are not defined as minor in the Schedule, and as a result he remains within the MIG and its $3,500.00 limit on treatment.
iii. As the applicant has been found to be within the MIG, which has been exhausted, he is not entitled to any of the treatment plans, or interest.
iv. As there are no benefits owing, the respondent is not liable to pay an award.
ANALYSIS
Income Replacement Benefits ("IRB")
8To receive initial payment for IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. He must identify the essential tasks of his employment, which tasks he is unable to perform, and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test and criteria noted above.
9Here, the applicant argues that he meets the test as outlined above due to serious and permanent physical and psychological injuries sustained as a direct result of the accident, including headaches, dizziness, and pain in the shoulders, arms, neck, back, and left hand, along with depression, anxiety, and sleep disturbances. He relies upon:
a) an OCF-3 completed by Dr. Andrew Woo, chiropractor, and dated January 17, 2018 notes that the applicant suffered from a substantial/complete inability to work for 9-12 weeks due to sprain/strain of the cervical, thoracic, and lumbar spine, and left wrist;
b) clinical notes and records ("CNRs") from Dr. Hagop Boyrazian, family physician;
c) diagnostic imagining reports, including an x-ray report dated January 12, 2018 and an ultrasound dated May 15, 2020;
d) an s. 25 psychological assessment report dated April 8, 2019, completed by Grace Gronkowska, psychological associate;1
e) an FAE report dated July 16, 2019, completed by Dr. Preeya Chauhan, chiropractor;
f) treatment records from Scarborough Physiotherapy & Rehabilitation Centre, covering the applicant's treatment at this facility from his initial assessment on January 17, 2018 April 26, 2018 to February 14, 2019;
g) the OCF-18s in dispute;
h) an IRB report by S&T Accounting dated June 14, 2018 that concluded the applicant was entitled to $171.63 per week; and,
i) Canada Revenue Agency ("CRA") tax returns for 2017-2020.
10In response, Unifund argues that the applicant is not entitled to IRB for the period in dispute of January 12, 2018 to January 5, 2020 for two reasons. 1.) The applicant was not running his own painting business at the time of the accident as claimed, and that he actually reported being retired to assessors. As a result, Unifund takes the position that the applicant has not proven that he was working regularly or even at all at the time of the accident. 2.) The applicant has not provided sufficient medical evidence to demonstrate that he suffered from a substantial inability to perform the essential tasks of his employment.
11The respondent relies on the following s. 44 insurer examination ("IE") reports:
a) a psychological assessment report dated August 8, 2018, completed by Dr. Pushpa Kanagaratnam, psychologist;
b) a psychological paper review dated November 23, 2018, also completed by Dr. Kanagaratnam;
c) a MIG assessment report dated November 23, 2018, completed by Dr. Arta Bedaj, family physician; and,
d) an orthopaedic assessment report dated August 8, 2018, completed by Dr. Esmat Dessouki, orthopaedic surgeon.
12Below, I answer the two main questions that are relevant in the IRB dispute. First, I will address the applicant's work and income situation at the time of the accident to determine if he is eligible for IRB. Second, I will assess if the applicant has met his burden and proven, on a balance of probabilities, that he suffered from a substantial inability to perform the essential tasks of his employment during the period of time in dispute and is therefore entitled to IRB.
Is the applicant eligible for IRB?
13I accept the applicant's argument that he was working as a self-employed contractor/painter at the time of the accident. I find that he is eligible for IRB.
14The applicant has provided sufficient proof that he was self-employed at the time of the accident courtesy of the submissions of his 2017-2020 CRA tax returns. The 2017 CRA return shows that he declared gross self-employment revenue for that year of $13,000.00, of which he deducted $250.00 for expenses, leaving $12,750.00 in income for IRB calculation purposes. This number informed the S&T Accounting IRB Report, which utilized the relevant provisions of the Schedule to establish an initial weekly IRB entitlement of $175.22. Weekly IRB deductions that the respondent was entitled to deduct pursuant to s. 7(2)(1.) came to $3.58, resulting in a total weekly IRB of $171.63.
15I accept the conclusions of the S&T Report, which appear to accurately summarize the applicant's employment position at the time of the accident as well as the IRB entitlement. I also note that the respondent does not challenge the S&T Report or the claim of $171.63 of weekly IRB.
16The heart of the respondent's argument about IRB entitlement consists of accusations that the applicant was painting for a friend for approximately 15 hours a week and not actually self-employed, that he was supplementing this work with cash jobs as a DJ, and that he told assessors that he was retired at the time of the accident. I assign little weight to these accusations, however, as the respondent has provided minimal evidence to support them beyond a paragraph in submissions questioning the applicant's credibility.
17While the applicant told Ms. Gronkowska, Dr. Kanagaratnam, Dr. Bedaj, and Dr. Dessouki that he was painting for a friend on a part-time basis and was at least semi-retired at the time of the accident, this does not mean that he was not working. To me, these comments as recorded in the assessment reports read like a friend was employing him as a part-time painter during his retirement, which does not disqualify him from IRB—especially since he declared self-employment income on his 2017 CRA tax return.
18As a result, the CRA tax return for 2017 and the S&T Report that determined the amount of weekly IRB owing based on that information take precedence. The applicant reported self-employment income of $12,750.00 after expenses for 2017, and no evidence has been submitted that causes me to doubt this claim.
19Therefore, I find that the applicant is eligible for IRB for the time period in dispute.
Is the applicant entitled to IRB?
20I find that the applicant has not met his burden and demonstrated that he suffered from a substantial inability to perform the essential tasks of his employment during the period of January 12, 2018 to January 5, 2020. As a result, he is not entitled to IRB, nor interest.
21Most notably, the applicant's submitted medical evidence is insufficient to show that he sustained more than minor sprains and strains as a result of the accident. The OCF-3 dated January 17, 2018 noted soft-tissues injuries as described above, and listed that he would be substantially unable to work for 9-12 weeks. This was never updated with an additional OCF-3 to demonstrate why a greater length of time was being sought in the IRB dispute.
22While the applicant visited his family physician, Dr. Boyrazian, after the accident, he only addressed accident-related injuries at appointments on February 17, 2018, February 24, 2018, March 10, 2018, and July 21, 2018. Most of his appointments with Dr. Boyrazian were about other health issues, most notably ongoing hypertension and diabetes. In addition, Dr. Boyrazian wrote in his CNRs that a "[p]hysical examination revealed no abnormalities" at an appointment on August 20, 2018. Dr. Boyrazian followed this on November 26, 2018 by writing that an examination during an appointment with the applicant on this date "revealed no major abnormalities." The physician also did not prescribe medication for accident-related injuries, recommending only that the applicant take over-the-counter Tylenol and NSAIDs. Lastly, an x-ray report dated January 12, 2018 revealed no remarkable results. In all, these records do not support the applicant's contention that he suffered from a substantial inability to perform the essential tasks of his employment during the period of time in question.
23I assign little weight to the applicant's records from Scarborough Physiotherapy & Rehabilitation Centre. These records are not supported by objective medical evidence, they recount just the treatment that the applicant received, and they report only that the applicant was suffering from pain and limited range of motion. Although I do not challenge that the applicant was encountering these impairments, there is no mention in these reports that the conditions were causing the applicant to suffer the substantial inability to perform work tasks.
24I take a similar view of the Functional Capacity Evaluation Report completed by Dr. Chauhan. This report dated July 15, 2019 resulted from an in-person assessment that took place on July 8, 2019, some 18 months post-accident. I find this report late enough to raise questions of causation, especially as there is no associated medical record to establish ongoing impairment. This report is also quite far-ranging, with Dr. Chauhan—a chiropractor with no apparent neurological training—diagnosing the applicant with a number of physical injuries and limitations as well as post-concussion syndrome and tension headaches. Yet there is little to no objective medical evidence to support these conclusions. Dr. Boyrazian did not note any concerns about the applicant's strength and range of motion with regard to working, or really any physical issues at all after mid-2018. The family physician also did not record any suspicions of a head injury or neurological concerns in his CNRs, nor did he refer the applicant to a specialist, order diagnostic imaging, or prescribe medication. Accordingly, I do not regard the Dr. Chauhan report as particularly well-founded given the lack of supporting medical evidence.
25Additionally, I largely set aside an ultrasound report dated May 15, 2020 due to similar concerns with its timeliness. Although this diagnostic imaging showed that the applicant suffered from a partial articular surface tear of the supraspinatus in his right shoulder, this is from nearly two-and-a-half years post-accident. There is no medical evidence to show any sort of ongoing issue with the applicant's shoulder connected with the accident. There is no mention of this right shoulder pain until the applicant's appointment with Dr. Boyrazian on May 16, 2020, which reviewed the results of the ultrasound that the family physician had apparently referred the applicant to on May 13, 2016. At any rate, there is no medical evidence linking this tear to the accident of some 28 months earlier, so the ultrasound does not support the applicant's IRB claim.
26I find the physical medical evidence provided in the IE reports of Dr. Bedaj and Dr. Dessouki to be more compelling. Although Dr. Bedaj assessed the applicant with regard to the MIG issue, his findings are also applicable to the IRB claim. He diagnosed the applicant with uncomplicated soft-tissue injuries and found that the applicant demonstrated a mostly normal range of motion and normal/full strength (albeit with some back tenderness). Nothing in Dr. Bedaj's report leads me to believe that the applicant suffered physical impairments that would meet the IRB test prescribed in the Schedule.
27I hold the same opinion about the orthopaedic IE report of Dr. Dessouki, who assessed the applicant in relation to non-earner benefits. Dr. Dessouki diagnosed the applicant with the same sprains and strains as did Dr. Bedaj, found that he displayed a full range of motion and strength in virtually all areas, and that he could at least partially complete most activities of daily living, despite complaints of pain in his lower back, neck, and left wrist. Again, even though this assessment was not completed with a focus on IRB, I accept it as an informative physical examination of the applicant. And as with the Dr. Bedaj report, there is nothing in Dr. Dessouki's report that suggests the applicant's physical impairments were causing him a substantial inability to work.
28I find the applicant's psychological evidence similarly unpersuasive. I assign limited weight to the psychological assessment report of Ms. Gronkowska even though she did diagnose the applicant with Major Depressive Disorder, Moderate and Somatic Symptoms Disorder with Predominant Pain. This assessment was not conducted until March 7, 2019, resulting in the report dated April 8, 2019. This is over 14 months post-accident, so it raises concerns about the applicant's symptoms being a direct result of the accident. Further, Ms. Gronkowksa's conclusions do not address specifically how and why these issues would prevent the applicant from substantially performing his work tasks. I do not find her comment that his "impairments are severe enough to affect his life's functioning in all areas" to be detailed enough to meet the test and criteria as described in the Schedule.
29Lastly, there is no supporting objective evidence to demonstrate that the applicant suffered from psychological issues as a result of the subject accident, at least not to the extent that this left him substantially unable to perform work tasks. There is little mention of psychological issues in the CNRs of Dr. Boyrazian. He recorded applicant complaints of anxiety, fatigue, weakness, and lack of concentration, but in just three appointments. Dr. Boyrazian did not prescribe medication for these complaints, or refer the applicant to a psychologist or other treatment provider.
30Moreover, the applicant makes it clear during a number of appointments with Dr. Boyrazian that he is very worried about his hypertension issues—not the injuries from the accident, or at least not just the injuries from the accident. This, to me, is an important point left unmentioned by Ms. Gronkowska. Dr. Boyrazian noted that he provided reassurance and counseling to the applicant regarding these hypertension worries on at least three occasions, without any mention of the accident. The applicant did not share this with Ms. Gronkowska. According to her report, the applicant told her that he was taking medications for elevated blood pressure and diabetes, but not that he was anxious about these conditions, as he clearly was during his appointments with Dr. Boyrazian. Instead, he reported that he had never been diagnosed with any mental health disorders. Unfortunately, Ms. Gronkowska did not review all medical information on this file in the process of completing her report, so she was not aware of these records. As a result, I do not believe that Ms. Gronkowska was in possession of all the facts at the time of her assessment, and accordingly assign it limited weight.
31Also, I prefer the IE psychological evaluation report of Dr. Kanagaratnam. It is timelier, coming as the result of an in-person interview with the applicant on July 25, 2018, roughly seven months post-accident. Dr. Kanagaratnam also reviewed medical reports and forms in the process of writing her report, making it quite thorough. And her clinical interview of the applicant was comprehensive, eliciting comments such as the applicant saying that he has not had any psychological intervention and that he does not feel that he needs it. The applicant also told Dr. Kanagaratnam that his mood was good to the point that nothing bothered him, that there had been no post-accident change to his cognition, and that he had no anxiety or symptoms of post-traumatic stress. Although the applicant also made a comment about feeling "depressed and sad much of the time" and was diagnosed as having an anxiety disorder due to the results of Millon Clinical Multiaxial Inventory ("MCMI") testing, he linked these feelings with pain symptoms, not psychological difficulties. Further, he told Dr. Kanagaratnam that he was self-reliant with household chores and looking after himself along with his mother. In all, this report does not support a finding that psychological issues are causing the applicant to suffer a substantial inability to work.
32For the above reasons, I find that the applicant has not met his burden and proven that he suffered from a substantial inability to perform the essential tasks of his employment. He is not entitled to IRB, nor interest.
The Minor Injury Guideline ("MIG")
33Section 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." An insured person may be removed from the MIG if it is established that accident-related injuries fall outside of its provisions or, under s. 18(2), that a pre-existing injury or condition precludes recovery if kept within the MIG. The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
34The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside the MIG. In this instance, the applicant argues that he sustained physical and psychological impairments as a direct result of the accident that are not included in the Schedule's definition of a minor injury. Therefore, he should be removed from the MIG. He relies on the same medical evidence for his MIG claim as he does with regard to the IRB matter.
35Unifund responds that the applicant's injuries are minor in nature and that he has already reached maximum medical recovery due to treatment within the MIG. It relies on the same medical evidence as noted above regarding the IRB claim.
Does the applicant suffer from injuries that warrant removal from the MIG?
36I find that the applicant has failed to demonstrate that he suffers from injuries that are not minor as defined in the Schedule. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
37Virtually all of the physical medical evidence points to the applicant having suffered soft-tissue sprains and strains of the sort that are categorized as minor in nature under the Schedule. As noted above in the section on the IRB issue, the OCF-3 indicated that the applicant sustained sprains and strains of the spine and wrist. Dr. Boyrazian wrote of the same muscular strains and sprains in his CNRs. The family physician did not prescribe any medication for these injuries, advising the applicant to take over-the-counter Tylenol and NSAIDs for pain. Also, as previously mentioned above, these CNRs show that the applicant was improving as of August 2018, to the point where Dr. Boyrazian wrote that he observed no physical issues or abnormalities. X-rays taken shortly after the accident revealed nothing remarkable. Dr. Chauhan diagnosed the applicant with primarily whiplash and soft-tissue sprains and strains in her Functional Capacity Evaluation Report. And as I have already described, the ultrasound revealing the tear in the applicant's right shoulder was from May 15, 2020, some 30 months after the accident. In all, nothing here indicates that the applicant sustained physical injuries that could not be treated within the MIG.
38In addition, I prefer the IE reports of Dr. Bedaj and Dr. Dessouki. Both physicians diagnosed the applicant with soft-tissue injuries that could be treated under the MIG, which accords with the medical evidence before me as described above.
39I further find that the applicant has not demonstrated that he suffers from psychological sequelae that fall outside of the minor injury definition in the Schedule. As noted above, I have concerns about the psychological report of Ms. Gronkowska, even though she did diagnose the applicant with depression and anxiety. She was not afforded all of the information regarding the applicant's anxiety about his hypertension issues, as she did not review the CNRs of Dr. Boyrazian, so I question these diagnoses in relation to the accident.
40I prefer the psychological IE report and paper review of Dr. Kanagaratnam. She reviewed a considerable number of documents on file (including the CNRs of Dr. Boyrazian), engaged in a thorough clinical interview that was not as dependent on self-reporting, and administered four tests to the applicant. Her report provides the most comprehensive psychological assessment of the applicant with regard to the MIG. As a result, I accept her diagnosis that the applicant was not suffering from a clinically significant psychological impairment as a result of the accident that would warrant his removal from the MIG.
41In accordance with the reasoning above, I find that the applicant remains within the MIG.
The Treatment Plans
42As I have found the applicant to remain within the MIG and its $3,500.00 limit on treatment, which has been exhausted, he is not entitled to the treatment plans in dispute or interest.
43I further find that the applicant has not substantiated his arguments that the respondent contravened the denial notice requirements of s. 38(8) of the Schedule in regard to the psychological treatment plan dated March 7, 2019, the chronic pain assessment dated December 20, 2018, and the psychological assessment dated January 14, 2019.
44In submissions, the applicant claims that the respondent submitted a "boilerplate response which did not provide meaningful and accurate reasons for the denial" of the psychological treatment plan and that the respondent provided late notices for its denials of the chronic pain and psychological assessments. Although the applicant does not mention s. 38(8), submissions clearly allude to this section of the Schedule, specifically the requirements that an insurer shall provide the insured person with a notice that includes "the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary" and that such notice be provided within 10 business days of the receipt of a treatment plan/OCF-18.
45The respondent makes no mention of these issues in its submissions.
46However, the applicant has not substantiated his positions regarding all three treatment plans.
47The applicant did not submit into evidence the psychological services denial letter that he claims contained a "boilerplate" response that contravened s. 38(8). (Although it is the applicant's burden, I do note that the respondent did not include this letter in its submissions, either.) It seems to be the only such denial letter not submitted, as all of the others are included alongside their OCF-18s. As a result, I do not have enough information to make a determination. The applicant has not met his burden and proven that insufficient notice regarding reasons for the denial of this plan was given in contravention of s. 38(8).
48Also, the applicant has not submitted proof that the chronic pain and psychological treatment plans were submitted to Unifund on the dates claimed. Although he has included both OCF-18s, there is no fax line at the tops of any of the pages of the documents indicating a date when they were transmitted. The respondent similarly includes the OCF-18s in its submissions, along with denial letters showing that these were sent on January 22, 2019 and February 4, 2019. But again, there is no indication of when the OCF-18s were sent by the applicant, either courtesy of a fax line on the documents or acknowledgement in the Unifund denial letters of the date that the treatment plans were received. Again, I find that the applicant has not met his burden and proven that the denials of these treatment plans were submitted after the 10-business-day deadline in s. 38(8) of the Schedule.
49At any rate, for all of the above reasons, the applicant is not entitled to the treatment plans in dispute or interest.
AWARD
50As no benefits are owing, it follows that the respondent is not liable to pay an award.
ORDER
51The application is dismissed and I find that:
i. The applicant is not entitled to IRB or interest as he has not demonstrated that he suffered from a substantial inability to perform the essential tasks of his employment during the disputed period of January 12, 2018 to January 5, 2020.
ii. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule, and as a result he remains within the MIG and its $3,500.00 limit on treatment.
iii. As the applicant has been found to be within the MIG, which has been exhausted, he is not entitled to any of the treatment plans or interest.
iv. As there are no benefits owing, the respondent is not liable to pay an award.
Released: June 15, 2023
Brett Todd Vice-Chair