Wang v. Unifund Assurance Company, 2024 CanLII 20685

Citation: Wang v. Unifund Assurance Company, 2024 CanLII 20685

Licence Appeal Tribunal File Number: 22-002115/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:

Hai Yan Wang Applicant

and

Unifund Assurance Company Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Ken Yip, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hai Yan Wang, the applicant, was involved in an automobile accident on May 27, 2021, 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:

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 a non-earner benefit (“NEB”) of $185.00 per week from June 1, 2021 and ongoing?

iii. Is the applicant entitled to $4,416.71 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted June 2, 2021?

iv. Is the applicant entitled to $4,149.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a plan submitted August 10, 2021?

v. Is the applicant entitled to $102.47 ($1,300.00 less $1,197.53 approved) for physiotherapy services, proposed by Total Recovery Rehab Centre in a plan submitted July 27, 2021?

vi. Is the applicant entitled to $3,981.88 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a plan submitted August 23, 2021?

vii. Is the applicant entitled to $2,200.00 for a Psychological Assessment proposed by Somatic Assessments and Treatment Clinic, in a plan submitted August 24 2021?

viii. 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?

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

RESULT

3The applicant is barred from seeking entitlement to a NEB pursuant to s. 31(1) of the Schedule.

4The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

5If the MIG has not been exhausted, then pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits set out in the disputed plans, if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

6As no benefits are owing, unreasonably withheld or delayed, no award is payable.

ANALYSIS

The applicant is barred from a seeking a NEB pursuant to s. 31(1) of the Schedule

7I find that the applicant is barred from seeking entitlement to a NEB pursuant to s. 31(1) of the Schedule.

8Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

9Sections 31(1)(d)(i) of the Schedule provides that the insurer is not required to pay a NEB to a person who, at the time of the accident, was engaged in an act for which the person is convicted of a criminal offence.

10The respondent submits that the applicant is barred from seeking a NEB as she was convicted of a criminal offence on the day of the accident and relies on the Court Order dated February 14, 2023 (“Court Order”). The applicant did not respond to the respondent’s assertion.

11The Court Order states that the applicant was found guilty of an offence under s. 320.13(1) of the Criminal Code of Conduct (R.S.C, 1985, c. C-46) on May 27, 2021, the day of the accident.

12Given the clear wording of s. 31(1)(d)(i), I find that the applicant is not entitled to this benefit because she was engaged in an act for which she was convicted of a criminal offence on the day of the accident and the respondent is not required to pay a NEB.

The applicant’s accident-related injuries do not warrant removal from the MIG

13The applicant’s accident-related injuries do not warrant removal from the MIG.

14Section 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.”

15An 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 from any accident-related minor injury 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.

16The applicant did not specify on which grounds she sought to be removed from the MIG. In her brief 13-paragraph submissions, she listed the injuries in the Disability Certificate (“OCF-3”), submitted that her family physician, Dr. Clement Ka-Chung Yeung diagnosed her with anxiety and major depressive disorder with anxiety features, provided brief comments on two of the disputed plans and referred to a psychological assessment report dated August 6, 2021, by Dr. Sharleen McDowall. As such, I infer that the applicant submits that her psychological symptoms warrant removal from the MIG.

17The respondent disagrees and submits that Dr. Yeung’s diagnosis of the applicant was made prior to the accident on October 23, 2020, and submits that the CNRs of Dr. Yeung do not mention the subject accident at all. It relies on the s. 44 IE assessment report dated February 2, 2022, by Dr. Alfonse Marchie, physiatrist, who opined that the applicant’s injuries fall within the MIG and that no pre-existing injury or condition would prevent the applicant from achieving maximal medical recovery. It also relies on the s. 44 IE assessment report dated February 2, 2022, by Dr. Marjan Saghatoleslami, psychologist, who opined that there was no objective evidence of a diagnosable psychological condition as a result of the subject accident.

18I agree with the respondent that the medical evidence revealed that the applicant was diagnosed with psychological conditions of anxiety, insomnia and depression prior to the accident.

19The applicant provided insufficient reference to the post-accident medical evidence to prove what injuries were sustained from the accident and how the accident had affected her physical and psychological conditions. An applicant must direct an adjudicator to the relevant evidence in support of her case and cannot leave it up to the adjudicator to connect the dots and make the case for her.

20The post-accident hospital records revealed that the applicant attended the emergency department (“ED”) on multiple occasions concerning her anxiety and insomnia issues, but the applicant did not mention the accident, accident-related injuries or that the accident had impacted her psychological condition during any of the visits.

21During an ED attendance on August 7, 2021, again due to the applicant’s complaint of anxiety, the hospital records noted that the applicant’s physical examination was unremarkable. This appears to be consistent with Dr. Marchie’s findings in his s. 44 physiatry assessment report dated February 2, 2022, where he opined that “I do not believe that there are any functional limitations or physical restrictions as a direct result of the motor vehicle accident” and “do not believe there have been any pre-MVA history of MSK medical conditions that have been exacerbated as a result of the [accident]” and that the applicant falls within the MIG.

22The applicant has not directed me to any evidence that her pre-existing psychological conditions were exacerbated as a result of the accident or to any objective medical evidence that she is unable to reach maximal medical recovery as a result of the psychological conditions noted in the records.

23I am not persuaded by the applicant’s s. 25 psychological assessment report by Dr. McDowall as it is not in line with the rest of the medical evidence. During the interview, the applicant reported experiencing persistent pain in her neck, shoulder and back which has negatively impacted her daily functioning. However, as mentioned earlier, the applicant did not mention the accident or make any accident-related complaints to the hospital physicians or family physician during the post-accident visits.

24Most importantly, I give little weight to Dr. McDowall’s diagnoses of a major depressive disorder with anxious distress as well as specific phobia (travel), as it appears to be based solely on the applicant’s subjective responses during the interview and psychometric testing results. Dr. McDowall was not provided with any pre- and post-accident medical documents for review. Hence, she was not aware of the applicant’s pre-existing psychological condition, or her multiple pre- and post-accident hospital visits to the ED due to her recurring psychological conditions.

25I accept the respondent’s s. 44 psychological report dated February 2, 2022, by Dr. Saghatoleslami, psychologist, as he was asked to specifically assess the applicant’s psychological condition with the applicability of the MIG and a treatment plan. Dr. Saghatoleslami conducted an interview, administered psychometric testing, reviewed an extensive list of documents and opined that there is no objective evidence of a diagnosable psychological condition in relation to the subject accident; and there is no indication that the applicant’s pre-existing depression has been exacerbated as a result of the accident.

26Given the above reasons, I find that the applicant sustained predominantly minor injuries as a result of the accident and is kept within the MIG.

27As I have found the applicant to have suffered predominantly minor injuries as a result of the accident and is kept within the MIG, she is subject to the MIG treating limit of $3,500.00. As such, an analysis of whether the disputed treatment plans are reasonable and necessary is not required.

28Neither party confirmed in their submissions whether the MIG has been exhausted.

29Section 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.

30Accordingly, if the MIG limit has not been exhausted as at the date of this decision, the applicant is entitled to the benefits set out in the disputed plans, if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

Award

31The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

32As no benefits are owing, it cannot be said that they were unreasonably withheld or delayed, so no award is payable.

ORDER

33The applicant is not entitled to a NEB.

34The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

35If the MIG has not been exhausted, then pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits set out in the disputed plans, if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

36As no benefits are owing, unreasonably withheld or delayed, no award is payable.

37The application is dismissed.