Citation: Mendoza v. Unifund Assurance Company, 2024 ONLAT 22-006725/AABS

Licence Appeal Tribunal File Number: 22-006725/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:

Myra Mendoza

Applicant

and

Unifund Assurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Theomarcus Giannou, Counsel

HEARD: By way of written submissions

OVERVIEW

1Myra Mendoza, the applicant, was involved in an automobile accident on June 11, 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 Minor Injury Guideline (“MIG”) limit? Note: The parties have submitted that $68.00 remains in the MIG limits.

ii. Is the applicant entitled to medical benefits and cost of examination expenses recommended by Downsview Healthcare Clinic in the following treatment plans/OCF-18s:

(a) $2,680.71 for chiropractic treatment submitted July 21, 2020;

(b) $1,367.60 for chiropractic treatment submitted December 9, 2020;

(c) $1,800.00 for physiotherapy submitted January 7, 2021;

(d) $3,335.98 for psychological treatment submitted March 12, 2021;

(e) $2,077.68 for chiropractic treatment submitted March 12, 2021;

(f) $1,563.72 for physiotherapy submitted May 6, 2021;

(g) $1,820.50 for an attendant care assessment submitted August 12, 2020;

(h) $2,000.00 for a psychological assessment submitted October 13, 2020; and

(i) $587.19 for preparation of OCF-18s/OCF-3 submitted November 10, 2021?

iii. 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?

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

RESULT

3The applicant has not proven an injury that falls outside of the MIG.

4The applicant is entitled to the remaining amount within the MIG limit and interest on any incurred benefits as per s. 51 of the Schedule.

ANALYSIS

The applicant’s injuries are minor in nature

5The applicant has not proven they suffer from injuries that would warrant removal from the MIG.

6An 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). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.

7The applicant submits that they be removed from the MIG on the basis of a psychological condition or chronic pain with a functional impairment.

The applicant has not proven a psychological impairment that warrants removal from the MIG

8I find the applicant has not proven a psychological impairment that warrants removal from the MIG.

9The applicant submits that a psychological assessment conducted by Dr. Jacqueline Brunshaw, psychologist, on December 18, 2020 demonstrates that the applicant suffers from a psychological impairment which would warrant removal from the MIG. I disagree with the applicant’s position.

10The respondent submits that the applicant has not adduced enough medical evidence to prove a psychological impairment that would remove the applicant from the MIG. The respondent further submits a psychological assessment conducted by Dr. Louise Koepfler, psychologist, on February 6, 2021, to support its position. I am persuaded by the respondent’s evidence.

11Dr. Brunshaw preformed a very limited document review as part of the assessment, only reviewing an OCF-18, an OCF-3, and an attendant care assessment, conducted by Ms. Helen Lianos, RN, dated September 16, 2020. Dr. Brunshaw diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia (driving, being a passenger) and Somatic Symptom Disorder with Predominant Pain, Persistent Type.

12Dr. Koepfler, as part of her assessment, reviewed the documents referenced by Dr. Brunshaw, but in addition also reviewed the clinical notes and records of Dr. Jamal Aboujamra, the applicant’s family physician, and several other treatment and assessment plans. She concluded that the applicant’s mild symptoms are not significant and compelling enough to require formal psychological treatment.

13I also note a statement made by Dr. Koepfler in her report, that, “[The applicant] noted that she was asked to fill out forms concerning her mental health but did not request to see a psychologist nor did anyone else recommend that she pursue counselling.”

14This passage contradicts the report of Dr. Brunshaw who assessed the applicant two months prior and recommended 14 counselling sessions. This statement by the applicant leads me to doubt the veracity of Dr. Brunshaw’s conclusions as it appears the applicant is not interested in pursuing psychological treatment.

15The applicant submits that Dr. Koepfler’s assessment should be deemed invalid or given limited weight as it fails to answer the question of “whether the applicant’s psychological impairments prevent complete recovery within the confines of the MIG?”

16I note that the applicant has not referenced the test applicable in this case, which does not reference whether a complete recovery can occur within the MIG limits. The applicant must demonstrate a psychological impairment or chronic pain with a functional impairment to escape the MIG.

17The applicant has not made any submissions of a pre-existing condition under s. 18(2). As the report does provide a finding that the applicant is not suffering from a psychological condition, I find it relevant and useful. I also find the report useful as it documents comments made by the applicant stating that she has not requested psychological treatment.

18The respondent further submits that there is no evidence in the clinical notes and records of Dr. Aboujamra that would support a diagnosed psychological impairment. After reviewing the clinical notes and records, I agree and find no evidence that the applicant reported psychological symptoms to Dr. Aboujamra following the accident.

19Given the lack of contemporaneous medical documentation to support Dr. Brunshaw’s findings and the comments made by the applicant to Dr. Koepfler, I prefer the report and findings of Dr. Koepfler, that the applicant has not sustained a psychological impairment in the accident.

20As such, I find that the applicant has not proven they suffer from a psychological impairment which would warrant removal from the MIG.

The applicant has not proven chronic pain with a functional impairment

21I find that the applicant has not proven chronic pain with a functional impairment.

22The applicant’s only submissions on chronic pain are:

The applicant has suffered from chronic pain and psychological injuries as a result of the MVA. On examinations, Dr. Aboujamra and Dr. Omeed Hadisfar (family doctors), Dr. Oleksandr Pivtoran (chiropractor), and the insurer’s own assessors, consistently diagnosed Myra with persistent and ongoing neck pain, back pain, sleeping issues, and mood and anxiety disorders, all of which have persisted for more than 6 months. Since the date of loss, Myra has been forced to consume prescribed medications for an extended period of time, including but not limited to Naproxen, Morphine, and over-the-counter pain medications to treat her chronic pain injuries.

23I note that the applicant has not made submissions on the functional impairment that has been caused by the chronic pain. I also note that the applicant was dispensed a single course of Naproxen that, according to the submitted prescriptions summaries, was not subsequently renewed. The applicant’s reference to Morphine is misleading, as morphine was prescribed in relation to a laparoscopic cholecystectomy (gallbladder removal) which is unrelated to the accident.

24The respondent submits that there has been no long-term change in the applicant’s functionality. The respondent further submits that, while not binding on the Tribunal, the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”) has been adopted as an interpretive tool for the Tribunal to use to evaluate chronic pain claims in the absence of a diagnosis. There have been no submissions made that demonstrate a formal diagnosis of chronic pain syndrome.

25The Guides state that at least three of the following criteria must be met for a diagnosis:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors

26In relation to the Guides, the respondent’s position is that the applicant has not met any of the six criteria, let alone the three required for the Tribunal to make a finding of chronic pain.

27I agree with the position of the respondent. There has not been evidence provided that would support any of the six criteria in the Guides.

28There has been no evidence of dependence on prescription drugs or other substances nor has there been any evidence of excessive dependence on health care providers, the applicant’s spouse, or their family.

29The applicant works as a mail carrier and has returned to their duties. Given this, there is no evidence of physical deconditioning, or failure to restore pre-injury function. There have been no submissions made which suggest that the applicant has withdrawn from their social life, nor, has there been a development of psychosocial sequalae.

30As such, the applicant has not proven, on a balance of probabilities, that they suffer from chronic pain with a functional impairment.

The applicant is entitled to the balance of the MIG limits

31Having found that the applicant remains in the MIG, an analysis of the reasonableness and necessity of the treatment plans is not required. However, the applicant is entitled to the remaining amounts up to the MIG limit, plus interest on any incurred treatment, in accordance with s. 51 of the Schedule.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

33As there have been no benefits withheld, there is no basis upon which to consider entitlement to an award under s.10 of O Reg 664.

ORDER

34I find that:

i. The applicant sustained a predominantly minor injury as a result of the subject accident. The applicant remains within the MIG and is subject to its $3,500.00 limit on treatment. The applicant is not entitled to the treatment plans in dispute.