Keleher v. Unifund, 2024 CanLII 10550

Citation: Keleher v. Unifund, 2024 ONLAT 22-002625/AABS

Licence Appeal Tribunal File Number: 22-002625/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:

Todd Keleher

Applicant

and

Unifund

Respondent

DECISION

ADJUDICATOR:

Margaret Sims

APPEARANCES:

For the Applicant:

Jennifer A. Mitchell, Counsel

For the Respondent:

Nadia Peles, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Todd Keleher, the applicant, was involved in an automobile accident on August 24, 2020, 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 therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
2. Is the applicant entitled to $283.77 ($1,683.77 less $1,400 approved) for a physiotherapy assessment, proposed by Advantage Physiotherapy and Rehabilitation in a treatment plan/OCF-18 (“treatment plan”) dated November 23, 2020?
3. Is the applicant entitled to $2,199.99 for a physiotherapy assessment, proposed by Advantage Physiotherapy and Rehabilitation in a treatment plan dated May 5, 2021?
4. Is the applicant entitled to $2,927.44 for a chiropractic assessment, proposed by Dr. Michael Rumeo in a treatment plan dated March 9, 2022?
5. 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?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant’s medical and rehabilitation benefits are subject to the MIG limit of $3,500.00.

4I find that the applicant is entitled to payment of the treatment cost incurred, if any, up until February 1, 2021, for denied portion of the November 23, 2020 treatment plan and interest in respect of any such incurred costs.

5I find that the applicant is not entitled to the remaining treatment plans in dispute.

6I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.

ANALYSIS

Minor Injury

7I find that the applicant’s medical and rehabilitation benefits are subject to the MIG limit of $3,500.00 because the injuries he sustained in the accident were predominantly minor as defined in s. 3 of the Schedule and he has not demonstrated on a balance of probabilities that his accident-related impairments fall outside of the MIG.

8Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to the MIG limit of $3,500.00 if the insured person sustains injuries that are predominantly minor as defined in s. 3 of the Schedule.

9Section 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.”

10The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG. To do so, the applicant will need to:

i. demonstrate that their accident-related injuries fall outside of the definition of “minor injury” or,

ii. pursuant to s. 18(2) of the Schedule, provide compelling evidence from a healthcare provider that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

Minor Injuries Sustained in the Accident

11The applicant submits that he should not be subject to the MIG limits because he has sustained psychological and neurological impairments and post-traumatic headaches as a result of his motor vehicle accident. In this regard, the applicant relies on the evidence of:

i. Dr. Michael Rumeo, Chiropractor, which sets out that Mr. Keleher’s injuries do not fall within the MIG as he suffers from psychological complaints and from neurological complaints, such as persistent headaches or feeling pressure in the head. He recommended a psychological assessment and a neurological assessment due to symptoms of a possible concussion.

ii. Further, Thai Thao, Physiotherapist, has diagnosed Mr. Keleher with a number of injuries, including post-traumatic headaches.

12The respondent submits that the applicant’s injuries and pre-existing conditions are classified under the MIG and that the applicant has not met his onus of proving that his injuries fall outside of the MIG. In particular, the respondent argues that the applicant has not proven that he has an impairment that is not predominantly minor in nature and no expert has provided a LAT Rules-compliant report explaining how the applicant meets the criteria for a psychological diagnosis (under the DSM IV or V) or suffers from neurological impairments.

13I find that the injuries sustained by the applicant in the accident were predominantly minor as defined in s. 3 of the Schedule. Based on the Physician Assessment Report by the assessor Dr. Hanna dated April 13, 2022 (the “IE Report”), the notes in the clinical notes and records (“CNRs”) of his family doctor Dr. Bruce (“GP’s CNRs”), the results of a cervical spine x-ray included in the GP’s CNRs and the CNRs of the physiotherapist Thao Thai, I find that the applicant suffered from a myofascial sprain and strain of the cervical region. This injury falls within the definition of a “minor injury”.

14I have considered the applicant’s submissions that he should be removed from the MIG as a result of psychological and neurological complaints and post-traumatic headaches, but I do not find that the applicant has met his burden of establishing with medical evidence that he has sustained accident-related injuries that fall outside of the definition of minor injury. The GP CNRs do not document complaints of headaches or other psychological or neurological complaints, as alleged. Further, I note that, while the applicant’s chiropractor and physiotherapist have documented the applicant’s psychological complaints and neurological complaints in their treatment plans, these diagnoses fall outside the scope of their practice, and the applicant has not submitted evidence of a qualified expert or medical practitioner with relevant expertise who has diagnosed the applicant with psychological and/or neurological injuries.

No Pre-Existing Conditions that will prevent maximal recovery if subject to the MIG

15The applicant further submits that he should not be subject to the MIG limits because he suffers from documented pre-existing conditions prior to the accident that were exacerbated by the accident and will prevent him from recovering within the $3,500 limit.

16The applicant submits that his pre-existing condition relates to a clavicle fracture and related injuries from a motor vehicle accident in August, 2014, including neck pain, and that this pre-existing condition is documented in x-rays, MRI reports, emergency room records, and clinical notes and records from his family doctor and physiotherapists, as detailed in paragraph 8-12 of the applicant’s submissions.

17The applicant relies upon the notes prepared by Physiotherapist Thai Thao that:

i. “cervical spine tendon/muscle entrapment/dysfunction secondary to previous clavicle fracture (September 20, 2014)” could affect his response to treatment for the injuries sustained in the accident. (Treatment Confirmation Form (OCF-23) of Advantage Physiotherapy & Rehabilitation dated August 26, 2020); and

ii. “cervical Spine Tendon/Muscle Entrapment Dysfunction secondary to previous clavicle fracture (September 20th, 2014) [and]… Learning Disability and Mental Health (anxiety)” could affect his response to treatment. (Treatment and Assessment Plan (OCF-18) of Advantage Physiotherapy & Rehabilitation dated November 9, 2020, and Treatment and Assessment Plan (OCF-18) of Advantage Physiotherapy & Rehabilitation dated April 13, 2021)

18I find that the applicant’s pre-existing medical condition will not prevent him from maximal recovery from the minor injury he sustained in the accident if he is subject to the $3,500 limit under the MIG.

19In making this finding, I note that:

i. while there is documentation by health care practitioners of a prior clavicle fracture and associated injury from an August 2014 motor vehicle accident, I am not satisfied that there is compelling evidence that the applicant suffers from pre-existing condition(s) which will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG;

ii. I do not find that there is compelling evidence to establish that the applicant’s learning disability and/or anxiety will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG;

iii. the evidence of the Physiotherapist Thai Thao is that the cervical spine injury secondary to a previous clavicle fracture “could” affect his response to treatment for the injuries sustained in the accident and also that a learning disability and anxiety “could” affect his response to treatment. However, in the OCF-18s dated November 9, 2020 and dated April 13, 2021, it is noteworthy that Mr. Thao:

i. selected the OCF-18 box indicating “yes” beside the question of whether the “impairment [is] predominantly a minor injury as referred to in the Minor Injury Guideline applicable to the accident”;

ii. selected the OCF-18 box indicating his recommendation that “Treatment under the Minor Injury Guideline has already been provided and additional treatment goods and or services are required within the $3,500 limit”, and

iii. he did not select the OCF-18 box indicating an opinion that: “The applicant has a pre-existing medical condition that was documented by me or another health practitioner before the accident and that will prevent the applicant from achieving maximal recovery from the minor injury if the applicant is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline”;

iv. the evidence of Dr. Hanna in the IE Report is that “[w]hile his pre-existing documented complaints may have been temporarily exacerbated by the subject accident, this is not expected to affect the recovery of his accident-related soft-tissue injuries” and that:

“[h]is documented and reported pre-existing medical health conditions are not expected to prevent him from recovering from his accident-related injuries if subject to the medical and rehabilitation limits of $3500.”

20Section 18(2) requires compelling evidence of a pre-existing condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap. I do not find that the applicant has met his burden with respect to the requirements of s. 18(2).

Insurer Notice Requirements

21The applicant submits that the respondent failed to give notice as required under s. 38(8) of the Schedule and, as a result, in accordance with s. 38(11) the respondent is prohibited from taking the position that the insured person has an impairment to which the MIG applies. The applicant’s position is that the breach of the notice requirement removes the applicant from the MIG and applies to the entire file, not the individual treatment plan for which the notice breach applies.

22With respect to the applicant’s submission that the respondent did not comply with s. 38 of the Schedule, the respondent submitted that it did comply with the requirements of s. 38. The respondent notes that the OCF-18 in issue was submitted on November 23, 2020, and, within 2 business days on November 25, 2020, the respondent sent its partial approval letter and denial of the balance of the claim due to the MIG limits being exhausted.

23Further, the respondent argues that even if non-compliance is found that this would not result in a MIG prohibition on the entire application, but that this would only impact the specific treatment plan in question, and the consequences set out in s. 38(11) do not impose a permanent prohibition on MIG.

24Under s. 38(8), the insurer must notify the insured person within 10 business days with its decision on whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. Further, s. 38(9) adds another procedural obligation, and requires that, if the insurer takes the position that the MIG applies, it must include this information in the actual notice as well.

25I find that the November 25, 2020 notice in respect of the November 23, 2020 treatment plan did not satisfy the requirements in s. 38 because it did specify the reason that the treatment plan was denied and does not note that the MIG applies to the claim. I find that the respondent provided a compliant notice on February 1, 2021 which did specify the reason for the denial. As a consequence, pursuant to s. 38(11) the applicant is entitled to payment of the cost incurred up until February 1, 2021, if any, for the denied portion of the November 25, 2020 treatment plan in the amount of $283.77.

26I do not agree with the applicant that by virtue of the respondent’s non-compliant November 25, 2020 notice that the respondent is prohibited from denying future treatment based on the applicant being subject to MIG limits. In Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, the Divisional Court dismissed this interpretation of s. 38(11) and found that s. 38(11) does not impose a permanent prohibition on the insurer with respect to whether an insured person’s impairment is covered by the MIG.

27In making these findings, I have considered the OCF-23, the November 23, 2020 OCF-18 treatment plan and two notices in issue in this matter.

i. I find that the applicant sought treatment in accordance with the MIG by submitting a Treatment Confirmation Form / OCF-23 on August 27, 2020.

ii. I find that the applicant did not provide a request to be removed from the MIG when it submitted the treatment plan / OCF-18s on November 23, 2020. This plan includes the assessment by the Physiotherapist Thao Thai that the impairment is predominantly a minor injury as referred to in the MIG and is a plan for further treatment within the MIG.

iii. In the November 25, 2020 notice, the respondent provides a partial approval of $1,400.00 and denies $283.77 set out in the OCF-18 submitted November 23, 2020. The reason for the denial set out is:

Based on a review of the information and medical documentation provided to date, we do not agree to pay for the following goods and/or services outlined in this Treatment and Assessment Plan (OCF-18):

Physiotherapy: $170.79 Goods and Services: $112.98 Total amount of goods and/or services not approved: $283.77.

I find that this notice does not comply with the requirements of section 38(8) as it does not specify the reason that the treatment plan was denied and does not note that the MIG applies to the claim.

iv. Following a request for clarification by the applicant’s counsel, the respondent provided a second notice dated February 1, 2021. I find that the February 1, 2021 notice complied with the requirements of s. 38(8). The second notice sets out:

Based on a review of the information and medical documentation provided to date, we do not agree to pay for the following goods and/or services outlined in this Treatment and Assessment Plan (OCF-18):

Physiotherapy: $170.79

Goods and Services: $112.98

Total amount of goods and/or services not approved: $283.77.

We have compared this OCF-18 with medical documentation that has been provided, compared it further to the Minor Injury Guideline (MIG) and determined there is insufficient compelling evidence of preexisting injuries or conditions and insufficient medical documentation to persuade us that your accident related

injuries fall outside of the MIG.

Currently, at this time the policy coverage of $3500 that falls under the Minor Injury Guideline has been approved to date.

28As a result, I find that the applicant is entitled to payment of the cost incurred up until February 1, 2021, if any, for the denied portion of the November 25, 2020 treatment plan in the amount $283.77 and interest in respect of any such amounts.

29I have found that the applicant’s injuries are within the MIG and that the respondent is not prohibited from denying future treatment based on the applicant being subject to MIG limits. As the MIG limits have been exhausted, I find that the applicant is not entitled to the remaining treatment plans in dispute.

Award

30I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.

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

32The onus is on the applicant to prove on a balance of probabilities that the respondent unreasonably withheld or delayed payments.

33The applicant submits that an award of up to 50 per cent of the amount of unreasonably withheld or delayed payments with applicable interest is available when the Tribunal finds that an insurer has unreasonably withheld or delayed payments.

34The applicant submits that unreasonable behaviour also means not responding with reasonable promptness to communications from “legal practitioners that require an answer.” The applicant submits that correspondence sent to the respondent remained unanswered until subsequent follow ups were made, that benefits were denied because the respondent did not consider the information provided and the respondent failed to request that its assessor consider the OCF-18s. Further, the applicant has advised that, contrary to the Case Conference Report and Order, the respondent did not provide a copy of the adjuster log notes to the applicant.

35The applicant further submits that an award is appropriate because: (i) he is a vulnerable applicant with a pre-existing learning disability, (ii) the lack of the treatment and recommended goods negatively affected Mr. Keleher’s pain levels, recovery, and function, and (iii) given the consumer protection intention of the Schedule and the duties owed by insurers to their insureds, the need for deterrence in this case is important. He submits that a maximal award is appropriate in this case because, in addition to the factors set out above, the respondent did not comply with section 38(8) of the Schedule.

36The respondent submits that it made its decisions to deny benefits in this matter reasonably based on information provided in the IE Report.

37With respect to the balance of the applicant’s submissions, the respondent submits that it did not have medical documentation to have the applicant attend a IE until after the LAT Application was filed and once it did that the respondent promptly did so. Further the respondent notes that the IE Report did not support the proposition that the applicant suffered non-MIG injuries.

38I find that the applicant has not proven on a balance of probabilities that the respondent unreasonably withheld or delayed payments.

39As set out above, I have found that the applicant’s injuries are within the MIG and that the respondent is entitled to deny payment on this basis. The only benefits that I find the applicant is entitled to are the cost incurred up until February 1, 2021, if any, for denied portion of the November 23, 2020 treatment plan in the amount $283.77 on the basis of a notice which did not comply with section 38(8). However, I find that the denial of the November 23, 2020 treatment plan was not unreasonable in itself as the applicant had accessed benefits under the MIG as set out in the August 27, 2020 OCF-23 and November 23, 2020 OCF-18 treatment plan submitted by the applicant, it was the form of the notice of the denial that did not meet the requirements of s. 38(3).

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

41Having found that the applicant is entitled to the cost incurred up until February 1, 2021, if any, for denied portion of the November 23, 2020 treatment plan in the amount $283.77, I find that the applicant is entitled to interest on any such amount.

ORDER

42The applicant sustained minor injuries as a result of the accident and is subject to the MIG limit on treatment.

43The respondent shall pay the treatment cost incurred, if any, up until February 1, 2021, for the denied portion of the November 23, 2020 treatment plan in the amount of $283.77 plus interest in accordance with s. 51 of the Schedule.

44As the MIG limits have been exhausted, I find that the applicant is not entitled to the remaining treatment plans in dispute.

45The respondent is not liable to pay an award under s. 10 of O. Reg. 664.