Citation: A.W. v. Unifund Assurance Company, 2024 ONLAT 21-012934/AABS

Licence Appeal Tribunal File Number: 21-012934/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:

A.W.

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: George Campbell, Paralegal

For the Respondent: Ken Yip, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1A.W. (“the applicant”) was involved in an automobile accident on July 26, 2011, when she was 8 years old. The applicant submitted an application for accident benefits on or about September 8, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (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.

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 the Minor Injury Guideline (“MIG”) and the $3,500.00 limit on treatment?
2. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from March 20, 2020 and ongoing?
3. Is the applicant entitled to a medical benefit in the amount of $1,262.70 for physiotherapy proposed by HealthMax Physio in a treatment plan/OCF-18 (“plan”) dated July 7, 2020?
4. Is the applicant entitled to interest on overdue payment of benefits?

RESULT

3The applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to non-earner benefits.

5The applicant is not entitled to the treatment plan in dispute.

6No benefits are overdue, therefore no interest is payable.

PROCEDURAL ISSUES

7In reviewing the applicant’s submissions, I identified evidence that is subject to privilege and is presumptively inadmissible under s. 15(2)(a) of the Statutory Powers Procedure Act, and there is no evidence of waiver of that privilege by all parties to whom the privilege belongs. I have therefore not admitted that privileged evidence and have not considered any part of any party’s submissions that reference any privileged evidence, and have considered only that which remains admissible.

ANALYSIS

Minor Injury Guideline (“MIG”)

8Section 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. 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.”

9An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant’s submissions are somewhat vague with respect to the applicability of the MIG; however, she submits that she had a psychological condition as a result of the accident that warrants removal from the MIG. I find that the applicant has not met her burden to prove that she suffered an impairment that is not captured by the MIG.

11The applicant participated in examination under oath on November 27, 2020. She specifically denied having any pre-existing conditions. She reported having discomfort in her neck after the accident that got worse when she started high school when sitting for long hours at her desk or in a vehicle. If she lay down for a while, it would relieve some of the tension. She didn’t take any medication. There was no mention of any psychological injuries she sustained in the accident during the examination under oath. In terms of her activities, the applicant testified that she was not “into sports” before the accident. She went to church every Saturday before and after the accident, and continued to participate in her Pathfinders program (similar to Girl Scouts or Cadets, they would plant trees, go camping, and complete workbooks). She continued to attend school and maintained good grades (80s and 90s).

12A disability certificate dated July 7, 2020 identifies chronic injury of muscle and tendon at neck level and chronic post-traumatic headaches. The OCF-1 dated August 30, 2020 indicates that the applicant was able to return to school after the accident.

13The applicant participated in an insurer’s examination with Dr. Yuri Marchuk, physiatrist, report dated September 7, 2021. The applicant reported that she began to experience neck pain after the accident, and that it continued to persist. She also complained of anxiety that pre-dated the accident. She reported that she continued to attend school since the accident and participate in her social activities. She was able to complete her activities without restriction, didn’t require assistive devices, and her sitting tolerance at one time was 8 to 9 hours. Her neck range of motion was reduced by 5%. Dr. Marchuk diagnosed whiplash and bilateral shoulder myofascial dysfunction, but that there was no functional limitation or physical restriction as a result of her injuries.

14The applicant has not established that she had a pre-existing condition that precludes recovery within the MIG, nor that she had chronic pain with functional impairment. I am not persuaded that the applicant has established that she suffered from a psychological condition that warrants removal from the MIG. The applicant submits that she experienced anxiety and depression, and went to see Dr. Raushanah, a child psychiatrist, in the USA twice a year for her injuries. The applicant has included many clinical notes and records as well as her academic records. However, she only refers to the referral letter of Dr. Mann (possibly a family doctor) dated November 19, 2020 and the records of Dr. Raushanah in her submissions.

15The letter from Dr. Mann is a referral to psychologist for worsening anxiety; however, it doesn’t mention the subject accident or the cause of the alleged anxiety. None of the clinical notes and records of any of the practitioners provided note any psychological issues until the letter of Dr. Mann in November 2020.

16The encounter notes of Dr. Raushanah actually indicate that the applicant’s anxiety is related to tests and performance issues. There is no comment on the subject accident anywhere in his notes. It appears that he first diagnosed anxiety in July 2021.

17The evidence does not support that the applicant sustained a psychological impairment as a result of the accident. The applicant has not met her burden to prove that she sustained an injury that falls outside of the MIG.

Non-Earner Benefits

18Section 12 of the Schedule provides that an insurer shall pay NEBs to an insured person who sustains an impairment as a result of the accident and suffers a complete inability to carry on a normal life as a result of that accident within 104 weeks. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

19The process for claiming NEBs is outlined in section 36 of the Schedule. It requires that an applicant submit a completed disability certificate with their application, and no benefits are payable for any period before the completed disability certificate is submitted.

20The accident occurred in 2011. The applicant provided a completed Disability Certificate OCF-3 dated July 7, 2020, and a completed Application for Accident Benefits OCF-1 dated August 30, 2020.

21The applicant submits that she is entitled to NEBs from the date of her OCF-3 because the respondent “failed to provide a proper denial” because it didn’t consider her psychological impairment or set out medical reasons in its denial pursuant to s. 36(4). She submits that she is entitled to the benefits because she experienced anxiety and depression, and injuries to her neck and shoulder which negatively impacted her activities such as participating in Pathfinders, soccer and “other activities”.

22The respondent submits that the applicant not entitled to NEB from March 20, 2020 onward because she failed to show entitlement for the 104-week period after the accident. Alternatively, the respondent submits that the applicant has not established that she suffered a complete inability to carry on a normal life as a result of injuries sustained in the accident.

23I agree with the respondent. Without an OCF-1 and OCF-3 (retroactive or otherwise) for the pre-104 week period, an insured person cannot be found the have suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Both the OCF-1 and OCF-3 were submitted well after the 104-week period, some 9 years post-accident.

24Furthermore, there is little evidence to support a finding that the applicant met the NEB test for the 104-week period after the accident.

25It is well established that the test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”). To summarize paragraph 50 of the decision, the following are factors to consider when analyzing the test for an NEB:

i. A comparison between the applicant’s activities and life circumstances before and after the accident.

ii. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.

iii. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.

iv. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.

v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.

vi. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities?

26The clinical notes and records provided do not identify any functional or physical impairments as a result of any accident-related injuries. The evidence from the examination under oath indicates that she returned to her pre-accident activities, including attending the Pathfinders program, and her regular school activities without accommodation. She did well in school, it doesn’t appear that her grades were impacted, and she graduated with a grade 12 average of over 90%. The applicant has not met her burden to prove that she suffered a complete inability to carry on a normal life as a result of the accident.

27The applicant submits that the respondent’s notice letter dated February 10, 2021 was non-compliant with s. 36(4) because it failed to provide medical reasons and therefore it is obligated to pay the benefit.

28This argument is without merit. Section 36 states that upon receipt of the completed application and disability certificate, the insurer shall either (1) pay the benefit, or (2) give notice with medical and all other reasons why it does not believe that the applicant is entitled to the benefit, or (3) send a request under section 33(1) or 33(2). Upon receipt of the completed application, by letter dated October 13, 2020, the respondent provided notice to the applicant that it required her to participate in an examination under oath, pursuant to s. 33(2). After the examination under oath was completed, the respondent provided a further letter dated February 10, 2021 explaining why it believed that she was not entitled to NEB, and outlining the evidence obtained at the examination under oath regarding her pre- and post-accident activities, as required by section 36(4)(b). The respondent is not required to provide medical reasons where there are none, nor is the respondent required to arrange insurer medical examinations under section 44. I find that the respondent’s correspondence met the requirements of section 36.

29The applicant is not entitled to non-earner benefits.

30The applicant submits that she is entitled to the treatment plan because the respondent’s correspondence denying the treatment plan violated the notice requirements under section 38(8) and 38(13).

31The respondent failed to comply with s. 38(8) and (9) when it denied the treatment plan in dispute. The respondent failed to advise that it believed the MIG applied. The denials also appear to be non-compliant with the timelines prescribed by the Schedule under section 38(13).

32The treatment plan was submitted on or around July 7, 2020. By letter dated October 9, 2020 the respondent acknowledged that the OCF-1 was submitted recently but more than 9 years had elapsed since the accident occurred, and therefore an examination under oath was required to determine her entitlement to medical and rehabilitation benefits. The treatment plan in dispute is not specifically referenced in the letter. By letter dated February 10, 2021 following the examination under oath, the respondent advised that it required an independent medical assessment pursuant to section 44. The respondent does not indicate that it believes that the minor injury guideline applies in either letter.

33Following the insurer examination, the respondent received the report on September 7, 2021 but failed to provide the report to the applicant until September 27, 2021, contrary to section 38(13). The respondent advised that the treatment plan in dispute is denied because, based on the opinion of Dr. Marchuk, it has been ten years since the accident and the proposed treatment will not likely aid in further recovery.

34Given the non-compliance with the requirements, the remedy in section 38(11) is engaged – the respondent is not permitted to deny the benefits on the basis that the MIG applies, and the applicant is entitled to payment for goods and services incurred, starting on the 11th business day following submission of the treatment plan, until a proper denial is provided.

35However, the applicant has not demonstrated that she incurred the goods and services during the period of non-compliance. She indicated in her submissions that she has not participated in any facility-based physiotherapy for her injuries. Thus, from a statutory perspective, I am unable to find that she is entitled to the plan. I must determine whether the proposed treatment is reasonable and necessary.

36I find that the applicant has not met her onus to demonstrate that the proposed treatment was reasonable and necessary as a result of the subject accident. As noted above, the clinical notes and records of her treating practitioners do not document any accident-related injuries or physical impairments. Despite the applicant’s assertion of persisting neck pain, there are no complaints of neck pain documented in the records, nor was she prescribed any medication. I am persuaded by Dr. Marchuk’s report and conclusion that while the applicant sustained whiplash as a result of the accident, given the time elapsed since the accident, the proposed treatment would not likely aid in further recovery.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that no benefits are payable, it follows that no interest is payable.

ORDER

38The applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

39The applicant is not entitled to non-earner benefits.

40The applicant has not demonstrated that she incurred any of the goods and services proposed in the treatment plan. Thus she is not entitled to the plan pursuant to section 38(11)(2), and I have found them to be not reasonable and necessary.

41No interest is payable.

42The application is dismissed.