Bougouneau v. Unifund Assurance Company, 2024 CanLII 54027

Citation: Bougouneau v. Unifund Assurance Company, 2024 ONLAT 21-012260/AABS

Licence Appeal Tribunal File Number: 21-012260/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:

June Bougouneau

Applicant

and

Unifund Assurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Mike Pryce, Paralegal

For the Respondent: Frank Comella, Counsel

HEARD: By way of written submissions

OVERVIEW

1June Bougouneau, the applicant, was involved in an automobile accident on May 19, 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:

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 limit and in the Minor Injury Guideline (“MIG”)? Note: Submissions indicate the MIG limits have been exhausted.

ii. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from July 27, 2020 to date and ongoing?

iii. Is the applicant entitled to $2,200.00 for a Neurological Assessment, proposed by Ontario Independent Assessment Centre in a treatment plan dated May 21, 2021?

iv. Is the applicant entitled to $3,157.39 for physiotherapy services, proposed by Alma Rehab in a treatment plan denied on December 24, 2021?

v. Is the applicant entitled to $2,825.37 for chiropractic services, proposed by Alma Rehab in a treatment plan denied on January 19, 2022?

vi. Is the applicant entitled to $2,300.00 for chronic pain assessment, proposed by Ontario Independent Assessment Centre in a treatment plan denied on January 25, 2022?

vii. 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?

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

RESULT

3I find that the applicant remains within the MIG. As the MIG limits have been exhausted, the applicant is not entitled to any disputed treatment plans.

4The applicant has not established entitlement to a non-earner benefit.

5There is no entitlement to a special award under s. 10 of O. Reg 664.

6As there are no benefits payable, the applicant is not entitled to interest.

ANALYSIS

The applicant’s remains within the Minor Injury Guideline

7I find that the applicant has not proven injuries which warrant removal from the MIG.

8An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1).

9In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if 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 applicant has not demonstrated an accident-related impairment which falls outside the MIG

10The applicant submits that they should be removed from the MIG as a result of an MRI conducted on March 14, 2022 which shows a full thickness tear of the right supraspinatus tendon. A full thickness tendon tear falls outside of the definition of a “minor injury” in s. 3(1).

11The respondent points to a s.44 physiatry report of Dr. F. Ismail dated January 12, 2021. Dr. Ismail noted that there was normal active internal and external rotation of the shoulders which was pain free and that there was no shoulder instability on either side.

12The applicant visited Dr. W. Rafiqi, her family physician on May 30, 2020, the day after the accident. There were no complaints or mention of injury to the right shoulder in this visit. There was however mention of left shoulder arthritis and biceps tendinitis.

13Based on the evidence submitted, I find that the full thickness tear of the right supraspinatus tendon was not caused in the accident, as a right shoulder injury was not mentioned to the applicant’s family doctor in her visit post accident or noted in Dr. Ismail during the s. 44 physiatry examination.

14Therefore, the applicant has not proven an injury which falls outside of the MIG.

The applicant has not demonstrated a pre-existing condition which meets the criteria of s. 18(2).

15I find that the applicant has not proven they have a pre-existing condition which would limit maximal medical recovery within the confines of the MIG.

16The applicant submits that the clinical notes and records of Dr. A. Soicher, orthopaedic surgeon, Dr. M. Elahi, plastic surgeon, Dr. P. Vayalumkal, physician, and Dr. Rafiqi, family physician, document that the applicant suffers from arthritis of the cervical spine and bilateral knees, and fibromyalgia.

17The respondent agrees that the applicant does have a documented medical history of the above pre-existing conditions; however, the respondent notes that no submissions were made regarding the applicant’s ability to reach maximal medical recovery within the confines of the MIG, despite those pre-existing conditions.

18Section 18(2) of the Schedule outlines a two-part test that the insured must meet to be removed from the MIG due to a pre-existing condition. Both conditions must be met.

19Firstly, the applicant must prove a pre-existing condition. The medical records in this case do reflect the existence of a pre-existing condition. This has been acknowledged by the respondent in their submissions.

20Secondly, the applicant must prove that the pre-existing condition prevents maximal medical recovery within the confines of the MIG. There have been no submissions advanced by the applicant on this point.

21As the applicant has not proven their pre-existing conditions would impact maximal medical recovery if kept within the confines of the MIG, I find that the applicant has not met their burden to prove that they should be removed from the MIG on this basis.

The applicant has not proven an entitlement to a non-earner benefit

22I find that the applicant has not proven entitlement to a non-earner benefit.

23Section 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. 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

24The applicant has made one line of submissions in relation to the non-earner benefit: “The medical records and Disability Certificate speak to Complete Disability in relation to the Non-Earner Benefit.”

25There was no mention of the test laid out in Heath, nor any reference to specific medical evidence which would support the Heath test.

26The respondent submits that the applicant is not entitled to a non-earner benefit based on the s. 44 physiatry assessment of Dr. F. Ismail dated January 12, 2021 and the s. 44 psychological assessment conducted by Dr. G. Lau dated November 2, 2020.

27These assessments include a comprehensive document review, and in person assessment with the applicant. Both Dr. Ismail and Dr. Lau found that the applicant does not currently suffer a complete inability to carry on a normal life as a result of the accident.

28As the applicant has not made any submissions or referenced any evidence to support an entitlement, I find that the applicant is not entitled to the non-earner benefit in dispute.

The applicant is not entitled to any of the disputed treatment plans.

29As the MIG limits have been reached and I have found that the applicant remains within the MIG, I find that the applicant is not entitled to any of the disputed treatment plans.

Interest

30As there are no benefits owing, no interest is payable.

Award

31The applicant has not made any submissions related to entitlement for an award under s.10 of O. Reg 664. Therefore, I find that the applicant has not proven entitlement.

ORDER

32For the reasons above, I find that:

i. The applicant remains within the MIG;

ii. The applicant is not entitled to a non-earner benefit;

iii. The applicant is not entitled to any of the disputed treatment plans;

iv. The applicant is not entitled to an award under s. 10 of O. Reg 664;

v. The applicant is not entitled to interest under s. 51 of the Schedule; and

vi. This application is dismissed.