Chuson v. Unifund Assurance Company, 2023 CanLII 72602

Citation: Chuson v. Unifund Assurance Company, 2023 ONLAT 21-007051/AABS

Licence Appeal Tribunal File Number: 21-007051/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:

Kathlyn Chuson

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Kathlyn Chuson, Applicant Kateryna Vlada, Counsel

For the Respondent: Unifund Assurance Company Gurpreet Singh, Counsel

HEARD: In Writing

OVERVIEW

1Kathlyn Chuson, the applicant, was involved in an automobile accident on September 16, 2018, 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:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and the $3,500.00 limit in the Minor Injury Guideline?

If the applicant’s injuries are not predominantly minor, then I must determine the following:

2. Is the applicant entitled to $4,348.58 for physiotherapy services, recommended by Physiocare and Wellness Clinic, in a treatment plan/OCF-18 dated April 1, 2019?

3. Is the applicant entitled to the cost of an assessment and psychological services recommended by Chinguacousy Physio & Foot Clinic, as follows: i. $2,114.93 for psychological services (assessment), in a treatment plan dated October 22, 2019; and ii. $3,641.09 for psychological services (counselling), in a treatment plan dated February 20, 2020?

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

5. Is the respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019 (“the Rules”)?

RESULT

3The applicant has not demonstrated that her accident-related injuries justify removal from the MIG. She is not entitled to the disputed treatment plans, and no interest is payable.

4The respondent is not entitled to costs pursuant to Rule 19. On a review of the evidence, I do not agree with the respondent that the applicant’s claim is unreasonable or frivolous.

ANALYSIS

Applicability of the MIG

5Section 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.”

6An insured may be removed from the MIG if they can prove their accident-related injuries are not treatable within the $3,500.00 limit.

7Under section 18(2), an insured may be removed from the MIG if they can prove, by submitting compelling medical evidence, that a documented pre-existing injury or condition prevents their recovery if kept within the confines of the MIG.

8The Tribunal has also determined that chronic pain with functional impairment or psychological impairment may warrant removal from the MIG.

9In all cases, the onus is on the insured to