Yaya v. Unifund Assurance Co.
Licence Appeal Tribunal File Number: 22-006979/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:
Inoussa Yaya
Applicant
and
Unifund Assurance Company*
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Adam Moftah, Counsel
For the Respondent:
Anthea Chan, Counsel
HEARD: In Writing
May 6, 2024
OVERVIEW
1Mr. Inoussa Yaya (the "applicant"), was involved in an automobile accident on March 22, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Scottish and York Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
Preliminary Issue – Timeliness of application
2Is the applicant barred from proceeding with his claim for benefits in the amount of $4,031.07, due to failing to apply within two years of the respondent's refusal to pay?
3According to s. 56 of the Schedule, an application under subsection 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer's refusal to pay the amount claimed.
4According to s. 7 of the License Appeal Tribunal Act, if the Tribunal is satisfied that there are reasonable grounds for applying for an extension and for granted relief.
5The applicant argues that the time over the limit is only a few months, and that the applicant's representative's office suffered severe disruptions during the pandemic.
6The respondent argues that the applicant should be stature-barred from proceeding with his claim for the $4,041.07 in benefits due to the late filing.
RESULT
7In review of s. 56 of the Schedule, it is clear that the applicant did not commence his application of a benefit within the two-year time limit set out in the Schedule. Reviewing the date of the claim, it is well over nine months past the two-year deadline. The applicant has asked for O. Reg. 73/20 to be considered. This extended the limitation periods between March 16, 2020, to September 14, 2020, the claim is still nearly four months beyond the time limit. Section 56 of the Schedule is very clear in its wording with no exceptions built into it.
8If I apply s. 7 of the License Appeal Tribunal Act, there is an ability to grant an extension of time if there are reasonable grounds to do so. I am not directed to any reasonable grounds in the applicant's decision to warrant an extension of the time limits.
9I find that applicant is not entitled to the $4,031.07 for medical treatment, proposed by HealthMax, in a treatment plan submitted on August 7, 2019, due to missing the two-year timeframe to submit a claim.
Preliminary Issue – Costs
10Is the respondent eligible to costs for the preliminary issues of timing in the amount of $500?
11Section 19 of the Licence Appeal Tribunal Rules, 2023 outlines the process for a partly to request costs if they believe that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
12The respondent argues that the applicants repeated failure to comply with deadlines cannot be without consequence.
13The applicant made no rebuttal argument to the respondent's claim.
14In review of s. 19 of the Licence Appeal Tribunal Rules, I do not find that the applicant was unreasonable, frivolous, vexatious, or acting in bad faith by missing the two-year deadline for filling the request for funding of the medical treatment.
15I find that respondent is not entitled to $500 in association with s. 19 of the Licence Appeal Tribunal Rules, 2023.
Preliminary Issue – Late filing
16The respondent claims the applicant filed evidence late in accordance with the established timeline set out in the Case Conference report. As such, some of the clinical notes and records ("CNRs") of the applicant's family doctor Dr. Barih, should be struck from evidence.
17The applicant did not address this issue in their filing.
18As per the Case Conference report "By no later than 180 calendar days from the case conference, both parties shall exchange all other documents not previously disclosed upon which they intend to rely at the hearing."
19In review Case Conference timelines, and the content that of the CNRs from the applicant's Doctor in question, I have determined that I will allow the full records of Dr. Barih, to form part of evidence, as I do not see that the respondent has made a case that they would be prejudiced by allowing the full CNRs to be admitted.
20I find that the full CNRs of Dr. Barh will be reviewed as evidence in this hearing.
ISSUES
21The 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 $2,460.00 for a physiatry assessment proposed by HAL Disability, in a plan submitted on June11, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to a special award under s. 10 of O. Reg. 664, because of unreasonably withheld or delayed payments?
RESULT
22I find that:
i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG and is therefore not entitled to the physiatry treatment plan at issue.
ii. As no payments are due, no payment were unreasonably withheld or delayed. No special award is owed.
iii. As there are no overdue payments of benefits, no interest is due.
ANALYSIS
The Minor Injury Guideline ("MIG")
23Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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."
24An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
25The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits that he should be removed from the MIG due to his physical injuries being more that minor in nature and because he had a pre-existing injury in accordance with s. 18(2).
26The respondent argues that the applicant has not met the burden of proof that his injuries from the motor vehicle accident were more than minor injuries, or a pre-existing injury would preclude his maximal recovery if he is subject to the MIG.
The applicant remains within the MIG
27I find that the applicant has not met his onus and demonstrated that he suffers injuries that would be outside of sprain and strain, nor that the applicant suffered from a pre-existing injury that would preclude his recovery within MIG.
Are the applicant's physical injuries more than minor?
28I do find that the applicant suffers from non-minor physical injuries.
29An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the definition of "minor injury".
30The applicant submits that the physical injuries he suffered from the motor vehicle accident were beyond those defined as a minor injury in the Schedule.
31The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that the injuries sustained were beyond those outlined in MIG.
32The applicant relies on the CNRs of Dr. Berih, the applicant's family doctor.
33The respondent relies on several Insurer's Examinations assessments completed by Dr. Silver, an MD.
34The CNRs for Dr. Berih contain no evidence that the doctor ever diagnosed the injuries suffered from the motor vehicle accident as more than minor injuries.
35An Insurer's Examination was completed by Dr. Silver on October 7, 2019. During the examination the applicant reported that he had taken three days off after the accident and was still working on slightly reduced hours. He did not list any restrictions with his activities of daily living and was currently "more than half better". The physical examination was unremarkable and Dr. Silver's diagnosis were that the applicant suffered minor injuries.
36Dr. Silver reaffirmed his diagnosis in a Paper Review completed on October 28, 2019.
37Dr. Silver completed another independent medical evaluation on April 4, 2023. During this physical examination, the doctor noted that there was nearly a full ROM. After this examination, the doctor continued to reaffirm his diagnosis that the applicant suffered only minor injuries.
38In review of all of the evidence, I find that no medical evidence has been presented that would lead me to a determination that the injuries suffered during the motor vehicle accident were more than minor.
39Accordingly, the applicant has not substantiated injuries that would be considered more than minor under the Schedule.
The applicant does not suffer from a pre-existing injury.
40I do not find that the applicant suffers from a pre-existing injury that would preclude his recovery in MIG.
41Under s. 18(2) of the Schedule, 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 may result in a person's being removed from the MIG.
42The applicant submits that the accident exacerbated a pre-existing injury.
43The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that a pre-existing injury would preclude his recovery with MIG.
44The applicant relies on the CNRs of Dr. Berih, an OCF-3 completed by Dr. Takaliou, and two OCF-3s completed by Dr Berih.
45The respondent relies on several assessments completed by Dr. Silver.
46In the CNRs for Dr. Berih I find no compelling medical evidence presented that the applicant's pre-existing shoulder injury would preclude his recovery in MIG. In the CNRs, Dr. Berih refers to the shoulder pain as a minor injury. In review of all the medical imaging completed post accident, the doctor does not report a changes to the applicant's shoulder or that the results of any of the imaging indicated the injury is more than minor or that the applicant's injury would preclude his recovery in MIG. The final imaging done on the applicant was an Ultrasound completed on March 9, 2022, that concluded nothing of note, and listed no abnormalities.
47The OCF-3 was completed by Dr. Takaliou, chiropractor, on April 2. 2019. It lists the injuries sustained by the applicant as sprain and strain, and that they would resolve in 9-12 weeks. They do not capture any information about a pre-existing injury. Also, there is some inconsistency in reporting of information in this note as it indicates that the applicant would be unable to perform essential task of his employment, nor able to return to work on modified hours. This doesn't match all other reporting from the applicant, as he returned to work 3 days after the accident.
48The OCF-3 was completed by Dr. Berih on Jan 24, 2020. It indicates that the injuries are minor in nature and do not mention any pre-existing injury.
49A second OCF-3 was completed by Dr. Berih on March 9, 2023. It continues to indicate that the injuries were minor in nature and does not mention to any pre-existing injuries.
50The Insurer's Examination completed by Dr. Silver on October 7, 2019. During the examination, the doctor also noted that he found a miss-match between the ROM results in the formal testing and with other observed ROM during the assessment. Also, during the interview there was no mention of a pre-existing injury by the applicant. Dr. Silver's diagnosis were minor injuries.
51Dr. Silver reaffirmed his diagnosis in a Paper Review completed on October 28, 2019.
52Dr. Silver completed another independent medical evaluation on April 4, 2023. During this physical examination, the applicant reported immediate pain in his left knee after the accident and mentioned to the doctor that his pre-existing left knee pain was aggravated following the accident. I can find nothing in any of the submitted evidence that discusses any associated left knee pain, post the motor vehicle accident. My review of the evidence included the CNRs of Dr. Berih, the submitted OCF-3s, the submitted OCF-18s, and all of the completed Insurer's Exams and can find no mention of left knee pain in association with the motor vehicle accident. The physical examination showed normal and full ROM in all areas. The Doctor reaffirmed his diagnosis of minor injuries.
53In review of all of the evidence, I find that no medical evidence has been presented that would lead me to a determination that a pre-existing injury precluded the applicant from recovering within MIG.
54Accordingly, the applicant has not demonstrated on the balance of probabilities that a pre-existing injury precluded his recovery within MIG.
Conclusion
55For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.
The Treatment Plans
56As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary. The applicant remains eligible to receive benefits up to the MIG limit, if it has not been exhausted.
ORDER
57I find that:
i. The applicant remains subject to the MIG.
ii. The applicant is not entitled to payment for any treatment plans beyond the MIG limits.
iii.
iv. As nothing is owed, no special award or interest is due.
v. The application is dismissed.
Released: August 15, 2024
Robert Rock
Adjudicator