Licence Appeal Tribunal File Number: 22-006563/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:
Batstone Christyanton
Applicant
and
Unifund
Respondent
DECISION
ADJUDICATOR: Tami Cogan
APPEARANCES:
For the Applicant: Michelle Velvet, Counsel
For the Respondent: Sin Ying (Olivia) Cheng, Counsel
Written Hearing: Heard by way of written submissions
OVERVIEW
1Batstone Christyanton, the applicant, was involved in an automobile accident on October 7, 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 the respondent, Unifund, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment from Oshawa Physiotherapy Rehabilitation Centre proposed in a treatment plan (OCF-18) dated November 26, 2019, denied by the respondent on December 18, 2019?
iii. Is the applicant entitled to $2,200.00 or psychological assessment services from Novo Medical Services proposed in a treatment plan (OCF-18) dated January 20, 2020, denied by the respondent on February 18, 2020?
iv. Is the applicant entitled to $3,627.26 for psychological services from Novo Medical Services proposed in a treatment plan (OCF-18) dated April 24, 2020?
v. Is the applicant entitled to $2,200.00 for occupational therapy assessment from Novo Medical Services proposed in a treatment plan (OCF-18) dated November 15, 2021? Note: OCF-18 for a Chronic pain assessment.
vi. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
4The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
5No award is payable.
6The application is dismissed.
PROCEDURAL ISSUES
Late filed documents
7In its submissions, the respondent raises the issue that the applicant did not comply with the Case Conference Report and Order, in that he failed to produce the documents within the ordered deadline and requests an adverse inference be drawn against the applicant as a result of his non-compliance, specifically that the Tribunal not allow the applicant to rely upon the late filed documents.
8The applicant submits that the respondent has not demonstrated having suffered any prejudice as a result of the late filed documents.
9I find that the applicant may rely on the late filed documents. I note that the respondent did not file a Notice of Motion to raise the issue when the production deadline was missed. Furthermore, I agree with the applicant, that the respondent has not led evidence to demonstrate prejudice resulting from the late filing of the documents. In fact, the respondent has relied on these late filed documents in its own submissions. I am allowing the late filed documents.
Review of Evidence
10The Case Conference Report and Order issued by Adjudicator Neilson on February 11, 2023, at paragraph [14] c. specifically states “Submissions shall make specific reference to the evidence and law by tab and page number. Evidence not so referenced may not be reviewed.”
11I find that the applicant has failed to reference the law in his Submissions and evidence and law in his Reply Submissions. In fact, the applicant has not submitted a Book of Authorities. It is not an adjudicator’s responsibility to sort through documents and to make an applicant’s case for them. Where the applicant has not referenced evidence by page number within the submitted Book of Documents, I have not reviewed the evidence.
ANALYSIS
The Minor Injury Guideline (“MIG”)
12The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
14An insured person may be removed from the MIG if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities.
Issue 1: Are the applicant’s injuries subject to treatment within the $3,500.00 MIG limit?
15I find that the applicant has failed to demonstrate that he suffers from an injury or condition that warrants removal from the MIG.
16The applicant submits that he is entitled to medical and rehabilitation benefits beyond the MIG limit due to having a psychological condition and chronic pain as a result of the accident, as well as a pre-existing condition that would prevent maximal recovery if he is subject to the MIG. He relies on a s. 25 report to as evidence his conditions.
17The respondent submits there is no medical evidence to support that the applicant suffered a psychological impairment, or chronic pain with functional limitations, or that he had a pre-existing condition. The respondent relies on a s. 44 report in support of its position.
18For the reasons below, I find that the applicant has not demonstrated that he suffers from a psychological impairment, chronic pain with functional limitations, or a pre-existing condition that would preclude recovery within the MIG. He remains within the MIG.
Psychological injury
19I find that the applicant has failed to prove, on a balance of probabilities, that he sustained a psychological injury that warrants removal from the MIG.
20In order to be removed from the MIG due to a psychological injury, the applicant must show that he has an actual psychological impairment.
21The applicant submits he should be removed from the MIG due to psychological injuries. The OCF-3 dated on the day of the accident notes anxiety as an injury sustained in the accident. The applicant also identifies a note on the OHIP billing summary on January 2 and 23, 2020 for counselling one or more people per ½ hour with Dr. Laila Afroz, family physician. The applicant further submits that Dr. Steiner’s opinion should be favored over the Insurer’s Examination assessor because Dr. Steiner conducted more tests to support his opinion.
22The respondent submits that the overall inconsistent reporting by the applicant to his assessors on his functional abilities, together with the lack of medical documentation to support his psychological injuries or need for associated treatment, leads to a determination that there has been no psychological impairment sustained to remove him from the MIG. The respondent further submits that the OCF-3 the applicant relies upon, which references “anxiety”, was completed on the day of the subject accident. There are no other corroborating medical records to support what he told the s. 25 psychological assessor. This lack of supporting medical documentation suggests there is no psychological impairment, which is in line with the Insurer’s Examination assessor’s conclusions. The respondent concludes that psychological symptoms only warrant the removal from MIG when they impact functional status or where psychological treatment is warranted.
23I find that the OCF-3 reasonably identifies the applicant experienced anxiety on the day of the accident. The OCF-3 does not indicate what, if any testing was conducted. I accept that it is documentation of how the applicant was feeling on that day and time. However, the applicant has not led evidence that the applicant’s immediate response to the accident continued, that it required treatment, or that it caused functional limitations. I give no weight to the OHIP Summary that itemizes counselling services with Dr. Afroz Laila. The applicant has not submitted the family doctor’s clinical notes and records as to the nature of the counselling he received from his family physician on two occasions. Without evidence, I cannot make the leap that the counselling is related to the subject accident.
24The s. 25 and s. 44 assessors used different assessment tools to reach their conclusions. I cannot make a determination as to quality of the assessments based solely on the quantity of assessment tools each assessor used. I do note that the s. 25 assessments and interviews were conducted by Nazila Isgandarova, Registered Social Worker under the supervision of Dr. Leon Steiner, Psychologist. Nazila Isgandarova is not qualified to make diagnoses. There is no indication in the report who made the determinations and diagnosis, or which of the two provided recommendations. For this reason, I give the s. 25 report little weight. However, the s. 44 assessment determinations were made by the same individual, Dr. Marc Mandel, Psychologist, who observed and interacted with the applicant. For this reason, I prefer the evidence of Dr. Mandel.
25In his report, Dr. Mandel identifies concern with the applicant’s responses which indicated the possibility of symptom magnification, and that there are no supporting medical records. This resulted in his conclusion that there is a lack of consistent objective information to support a DSM V diagnosis or suggest that he suffers clinically significant symptoms that would indicate a substantial psychological impairment as a direct result of the subject motor vehicle accident. The applicant also reported to the s. 44 assessor that he had returned to work, resumed driving and the activities he participated in prior to the subject accident. This does not support a negative affect on his functional status, and there is no evidence that his treating physician recommended psychological treatment.
26I find that other than the s. 25 report, the applicant has not led evidence corroborating the applicant sustained a psychological impairment as a result of the accident. I find the applicant has not met his burden of proof that he suffers from a psychological injury or condition that warrants removal from the MIG.
Chronic Pain and Pre-existing Conditions
27I find that the applicant has failed to prove, on a balance of probabilities, that he sustained chronic pain with functional impairment, or that he had a pre-existing condition that would prevent maximal recovery from his minor injuries, if treated within the MIG.
28The Tribunal has determined that chronic pain with functional impairment is not subject to treatment under the MIG limit. It is the impairment in accordance with s. 3 of the Schedule, resulting from the chronic pain that the applicant must prove. In order to rely on a pre-existing condition, the applicant must provide compelling evidence, documented before the accident, from his health practitioner that he had a pre-existing medical condition that will prevent his achieving maximal recovery from his minor injury(ies) if subject to the MIG limit.
29The applicant submits he sustained chronic pain resulting from the accident, and that pre-existing injuries that prevent him from recovering within the MIG funding limit. The s. 25 report recommended psychotherapy and a multidisciplinary pain management program to avoid the development of chronic pain disorder.
30The respondent submits that it is not ongoing pain alone that takes an applicant out of the MIG, but rather, it must be continuous or of such severity that it causes distress accompanied by a functional impairment or disability. There are no medical records to support a diagnosis of chronic pain, or pre-existing injuries.
31For the reasons stated above, I give the s. 25 report little weight. Further, the applicant has not submitted any supporting medical records from treating physicians to corroborate the applicant has chronic pain with functional impairment. The applicant has not identified any injuries or conditions that existed prior to the accident, which would prevent him from recovering from his injuries if treated under the MIG. Without evidence, I cannot conduct an analysis to determine if the applicant has conditions, as a result of the accident that would permit him to seek treatment beyond the $3,500.00 funding limit provided by the MIG.
32I find the applicant has not met his burden of proof that he should be removed from the MIG for chronic pain with functional limitations, or that he had a pre-existing condition that prevents him from achieving maximal medical recovery within the MIG. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
Are the denial notices deficient?
33Sections 38(8), (9) and (11) of the Schedule set out notice requirements for insurers responding to treatment plans and outline specific consequences if they fail to comply. Under s. 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay, it must state the medical and all of the other reasons why it considers the goods and services not to be reasonable and necessary. Section 38(9) requires that if the insurer takes the position that the MIG applies, it must include that information in the notice. If an insurer fails to comply with any of these requirements, s. 38(11) states that it is prohibited from taking the position that the MIG applies and must pay for all the goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day until such time that it gives proper notice.
Issue 2: Psychological Assessment $2,200.00
(OCF-18 dated November 26, 2019)
34I find this treatment plan was not incurred during the period of time when the notice of denial was insufficient.
35The applicant submits that the denial letter of December 18, 2019, for the treatment plan submitted on December 3, 2019, is vague and does not make mention of any injuries or reasons for the denial, specific to him that could be understood by the applicant in order to make an informed decision to dispute the denial. Nor did the respondent provide medical reason or provide the denial within the required 10 business days, in accordance with the Schedule. Therefore, the treatment plan should be deemed reasonable and necessary.
36The respondent acknowledges the initial denial was outside the required 10 business days but submits that the proper notice was given on December 18, 2019, and November 16, 2020. The denial letter of November 16, 2020, was provided within 10 days after receiving the s. 44 reports and the reasons for denial were clear and understandable by the applicant. Further the treatment plan is not payable because it was not incurred between December 18, 2019, and November 16, 2020. There is a lack of medical evidence to support the necessity of the assessment and the s. 44 did not find a psychological impairment and is not reasonable. It is also a duplicative treatment plan to that in dispute in issue 3.
37I find the letters of denial on December 18, 2019, and November 16, 2020, were clear and unambiguous. Each letter referenced review of medical documentation that did not support the treatment plan being reasonable or necessary, informed the applicant he was subject to the MIG and on December 18, 2019, informed the applicant that a s. 44 assessment was being arranged. Although the denial was beyond the required 10 business days, the treatment plan was not incurred before November 16, 2020, when the respondent provided a fresh and timely denial.
Issue 3: Psychological Assessment $2,200.00
(OCF-18 dated January 20, 2020)
38I find the letter of denial was sufficient.
39The applicant submits the letter of denial is deficient. He references a letter dated February 18, 2020, which does not mention the applicant’s injuries, reason for denial, the respondent’s position on MIG or why a s. 44 assessment is required.
40I find the letter of denial dated February 18, 2020, is clear and unambiguous. The letter referenced review of medical documentation that did not support the treatment plan being reasonable or necessary, informed the applicant he was subject to the MIG and stated that the respondent was awaiting the applicant to attend the required s.44 assessment, for which arrangements were underway.
Issue 4: Psychological Services $3,627.26
(OCF-18 dated April 24, 2020)
41I find the letter of denial was sufficient.
42The applicant submits the letter of denial is vague, does not make mention of injuries specific to the applicant or provide him with reasons that could be understood by the applicant in order to make an informed decision to dispute the denial.
43I find the letter of denial dated May 8, 2020, is clear and unambiguous. The letter referenced review of medical documentation that did not support the treatment plan being reasonable or necessary, informed the applicant he was subject to the MIG and stated that the respondent was awaiting the applicant to attend the required s.44 assessment, for which arrangements were underway.
44Issue 5: Occupational Therapy Assessment $2,200.00
(OCF-18 dated November 15, 2021)
45I find the letter of denial was sufficient.
46The applicant submits the letter of denial is vague, does not make mention of injuries specific to the applicant or provide him with reasons that could be understood by the applicant in order to make an informed decision to dispute the denial. Furthermore, the letter references the s. 44 report but fails to set out which of the applicant’s injuries were found to be minor and on what basis, and only the assessor’s conclusion is indicated, not the basis for the respondent’s decision.
47I find the letter of denial dated December 20, 2021, is clear and unambiguous. The letter referenced review of medical documentation that did not support the treatment plan being reasonable or necessary and informed the applicant he was subject to the MIG. The respondent stated its conclusion were “as per” the s.44 reports. I find it reasonable that the respondent accepted and followed the conclusions of the s. 44 assessors.
48Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.
49Having found that the applicant remains in the MIG, s. 40(8) of the Schedule applies and the benefits in dispute are deemed reasonable and necessary. Accordingly, the applicant is entitled to the benefits set out in the disputed treatment plans, if incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.
Award
50The applicant submits an award is owing pursuant to s.10 of Regulation 664 because the insurer unreasonably withheld and delayed payment of benefits.
51Respondent submits that it has properly responded to the submitted treatment plans in question, or in the alternative, where applicable, rectified any denials.
52I find the respondent’s denial of the benefits was clear and unambiguous, and the conduct of the respondent does not rise to a level worthy of an award. As no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Regulation 664. Therefore, no award is payable.
CoNCLUSION and ORDER
53I order the following:
i. The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. The applicant is entitled to the benefits set out in the disputed treatment plans, if incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
iii. The respondent is not liable to pay an award.
iv. This application is dismissed.
Released: February 29, 2024
Tami Cogan
Adjudicator