Gittens v. Unifund Assurance Company, 2025 CanLII 62730

Citation: Gittens v. Unifund Assurance Company, 2025 CanLII 62730

Licence Appeal Tribunal File Number: 23-012939/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:

Kwesi Gittens

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Nicholas Whelan, Paralegal

For the Respondent: Yasar Saffie, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kwesi Gittens, the applicant, was involved in an automobile accident on October 25, 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from November 1, 2021 to date and ongoing?

iii. Is the applicant entitled to services proposed by 101 Assessments, as follows: (i) $2,460.00 for a psychological assessment in a treatment plan, dated March 1, 2022; (ii) $2,560.00 for psychological services in a treatment plan, dated October 3, 2022; and (iii) $2,460.00 for a chronic pain assessment in a treatment plan, dated October 10, 2023?

iv. Is the applicant entitled to services proposed by Mackenzie Medical Rehabilitation Centre Inc. as follows: (i) $3,626.28 for physiotherapy services in a treatment plan, dated November 10, 2021; (ii) $2,026.55 for physiotherapy services in a treatment plan, dated March 7, 2022; and (iii) $1,417.70 for physiotherapy services in a treatment plan, dated April 25, 2022?

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

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

4The applicant is not entitled to an IRB.

5The applicant is not entitled to the treatment plans in dispute.

6No interest is payable.

7The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

8I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

9Section 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) of the Schedule defines a “minor injury” 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.”

10An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery 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.

11In this matter, the applicant submits that he should be removed from the MIG as it is clear and evident throughout his submissions that there is a necessity to be removed from the confines of the MIG. The applicant specifically submits that he should be removed from the MIG based on his psychological impairments diagnosed by Dr. Konstantinos Papazoglou in his report dated July 29, 2022. Dr. Papazoglou completed a psychological assessment of the applicant and rendered a diagnosis of adjustment disorder (with mixed anxiety and depressed mood) and specific (isolated) phobia (driving/passenger). The applicant submits that the report is “riddled with complaints from the applicant” that support removal from the MIG.

12The applicant relies upon the decision in Liu v. Certas Direct Insurance Company, 2023 CanLII 1452 (ON LAT) (“Liu”), where the Tribunal found that the psychological assessment was reasonable and necessary. The Tribunal stated that the applicant’s psychological assessment was the sole assessment before the Tribunal, and there was no reason to discount the diagnosis and findings provided. The applicant submits, that the sole psychological assessment from Dr. Papazoglou cannot go unnoticed as the respondent did not obtain a psychological assessment of its own.

13The respondent submits that there is a lack of medical documentation and evidence provided by the applicant, as the applicant has provided sparse evidence, missing records, and evidence of little weight. The respondent submits that the applicant failed to provide a copy of the clinical notes and records (“CNRs”) of the family physician from one year pre-accident to the date of the case conference in non-compliance with the Case Conference Report and Order (“CCRO”), date April 10, 2024. In addition, in non-compliance with the CCRO, the applicant failed to provide the Decoded OHIP Summary from October 25, 2021 to date, and instead only provided it from January 24, 2022 to March 8, 2023 and from May 9, 2023 to May 15, 2024. The respondent further submits that there are no physical treatment records after June 2022 and no psychological treatment records. The respondent argues that there is no indication from the decoded OHIP summary that the applicant was referred to any specialist for physical, psychological or chronic pain issues.

14The respondent further submits that with respect to the report of Dr. Papazoglou, the diagnoses provided are questionable. Regarding the diagnosis of an adjustment disorder, the respondent submits that there are no contemporaneous or corroborative reporting of psychological symptoms in the medical documentation. In addition, with respect to the diagnosis of specific (isolated) phobia (driving/passenger), the respondent submits that the diagnosis is questionable. The report notes at page 12 that “Mr. Gittens stated that he currently does drive however only for essential purposes.” However, on page 7 the report notes that he currently works as a truck driver”.

15The respondent argues that the case of Liu relied on by the applicant is distinguishable from the current matter. In Liu, “objective” psychometric testing was carried out. In this matter, unlike Liu, the applicant has questionable credibility, there are vital medical records missing, and the report of Dr. Papazoglou relies exclusively on “self-reports” and subjective testing. The respondent submits that a “self-report” is not objective as was the case in Liu.

16I find that there is no compelling evidence at the time the psychological assessment was performed that the applicant was experiencing psychological symptoms. I place significant weight on the fact that the applicant has not provided the CNRs of his family physician despite the CCRO ordering the records to be provided. Upon review of the Decoded OHIP Summary, it is clear that the applicant saw his family physician on multiple occasions following the accident, yet these records were not provided. The applicant did not provide any submissions as to why these records were not provided. Similarly, the applicant has not directed me to any reference in the CNRs of Mackenzie Medical Rehabilitation Centre and 101 that mention psychological complaints.

17I find the report completed by Dr. Papazoglou to be of limited evidentiary value for the following reasons.

18First, in preparing his report, Dr. Papazoglou did not review any medical documentation in preparation for the assessment and his conclusions are based solely on the self-report of the applicant without any contemporaneous evidence to support his complaints.

19Second, Dr. Papazoglou did not conduct validity testing and instead relied upon subjective psychological testing such as the Beck Depression Inventory, Beck Anxiety Inventory, the Pain Disability Index and the Travel Anxiety Questionnaire. I place minimal weight on the results of this psychological testing as it is not supported by any contemporaneous records.

20The applicant relies upon the decision in Liu to support his position that the report of Dr. Papazoglou should be given more weight because it is the sole psychological report, and the respondent did not provide a responding medical report. However, I am not bound by this decision, and I find it distinguishable from the matter before me. In Liu, there was objective psychometric testing administered, whereas in the matter before me Dr. Papazoglou relied solely on the applicant’s self-report.

21I also do not accept the applicant’s argument that Dr. Papazoglou’s report must be given full weight because the respondent has not filed a responding report. This would misplace the burden of proof which is on the applicant. Having found Dr. Papazoglou’s report unpersuasive, it does not follow that full weight must be given to it because the respondent does not have a responding report, nor does it follow that the applicant has met his burden of proof.

22For the reasons set out above, I find that the applicant has not established on a balance of probabilities that he has a psychological impairment that warrants removal from the MIG.

The applicant is not entitled to IRBs in the amount of $400.00 per week from November 1, 2021 to date and ongoing

23I find that the applicant is not entitled to IRBs in the amount of $400.00 per week from November 1, 2021 to date and ongoing.

24To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks of the accident, suffer a substantial inability to perform the essential tasks of that employment. If the applicant was not employed at the time of the accident, to be eligible for an IRB under s. 5(1)(ii), the applicant must have been employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada). The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

25The applicant submits that he is entitled to an IRB from November 13, 2021 to January 14, 2022, in the amount of $350.00 per week. The applicant was in receipt of Employment Insurance (“EI”) benefits at the time of the accident. The applicant returned to work on January 14, 2022. The applicant submits that he is entitled to an IRB, as he was unable to gain employment due to his injuries and could not return to work. No further submissions were made by the applicant with respect to his entitlement to IRBs.

26The respondent submits that the applicant has not provided any evidence to prove that at the time of the accident, when he was attending Humber College for his truck and trailer license, that his studies or learning were affected by the injuries from the accident. The respondent submits that after the accident, the applicant completed his truck and trailer license, obtained a job starting in January 2022 and has been working at that same company ever since. The respondent argues that the applicant has not provided any evidence to support that he had any difficulties completing his licensing, or he missed time off work after the accident before January 2022. The respondent states that the applicant has not provided his employment file to prove that he had any absences due to his injuries after the accident and also has not provided any submissions as to the essential duties of his job, which essential tasks he was substantially unable to perform and for how long it lasted. Further, the respondent submits that the Disability Certificate dated November 3, 2021 checks off the “N/A” box for whether the applicant suffers a substantial inability to perform the essential tasks of his employment at the time of the accident.

27I find that the applicant has not met his onus of proving entitlement to an IRB for the following reasons.

28Firstly, I find that the applicant has not pointed the Tribunal to any medical evidence to support that he had any accident-related impairments that impacted his ability to work. I find that the Disability Certificate dated November 3, 2021 indicated “N/A” for whether the applicant suffers a substantial inability to perform the essential tasks of his employment at the time of the accident.

29Secondly, I have no evidence before me with respect to the applicant’s receipt of EI benefits at the time of the accident. While the applicant submits that he was in receipt of EI benefits at the time of the accident, the EI file has not been provided and there are no particulars provided about why he was in receipt of EI, the amount he was receiving or his previous employment.

30Finally, I find that the applicant’s only submissions with respect to his entitlement to an IRB, is that he is entitled to an IRB because he was unable to gain employment due to his injuries and could not return to work. I find that there are no submissions made as to why he was unable to gain employment due to his injuries or what injuries he suffered that prevented him from obtaining employment. The applicant has not referred to any medical evidence in his submissions with respect to his entitlement to an IRB to support his position.

31For the reasons set out above, I find the applicant has not met his onus of proving on a balance of probabilities that he is entitled to an IRB.

Entitlement to the treatment plans in dispute

32The parties confirmed at the case conference that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

33As an alternative argument, the applicant submits that all of the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8) of the Schedule.

34Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. If an insurer fails to provide the requisite denial, under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.

The respondent’s denial notices were compliant with s. 38(8) of the Schedule

35The respondent denied the treatment plans for physiotherapy services by way of letters dated November 17, 2021, March 17, 2022 and May 2, 2022. The treatment plan for a psychological assessment was denied by way of a letter dated March 8, 2022. The treatment plan for psychological services was denied by way of a letter dated October 18, 2022. The treatment plan for a chronic pain assessment was denied by way of a letter dated October 23, 2023.

36The applicant submits that all of the respondent’s denial letters are non-compliant with s. 38(8) of the Schedule. With respect to the denials for the treatment plans relating to physiotherapy services, the applicant argues that in respect to the treatment plan dated November 10, 2021, the respondent denied it on November 17, 2021 because the OCF-1 was missing. The applicant submits that the respondent should have adjusted the file when in receipt of the OCF-1. With respect to the denials dated March 17, 2022 and May 2, 2022 relating to physiotherapy services, the applicant submits that the notices are boilerplate denials without any reference to the injuries, comments and goals of the treatment plans that were denied. With respect to the denial letters dated March 8, 2022, October 18, 2022 and October 23, 2023 for the psychological assessment, psychological services and chronic pain assessment, the applicant submits that there are no medical and any other reasons for the denial and there is no mention of the injuries listed in the treatment plans or the additional comments in the medical reports of the applicant.

37The respondent submits that all of its denial letters provided adequate reasons why each treatment plan is not reasonable and necessary and there is sufficient information within the notices for the applicant to make an informed decision to either accept or dispute the denials.

38I find that the denial letters dated November 17, 2021, March 17, 2022, May 2, 2022, March 8, 2022, October 18, 2022 and October 23, 2023 are compliant with s. 38(8) of the Schedule.

39With respect to the denial of the treatment plan on November 17, 2021, the applicant submitted the treatment plan prior to submitting his OCF-1. Therefore, the respondent properly responded that it could not assess the treatment plan without receipt of an OCF-1. The applicant has not provided any evidence to support that the applicant’s file was not adjusted subsequent to receiving the OCF-1, as it is clear that he attended and received treatment by virtue of the fact that the MIG limits were exhausted.

40With respect to the other denials of the treatment plans for physiotherapy services, I do not agree that the notices were boilerplate denials and there was no reference to the applicant’s injuries. I find that each of the letters clearly identify the treatment plan in dispute, append a copy of the applicable treatment plan to the correspondence and specify that the respondent is not approving the recommended services or physical treatment. In addition, in the denial letters the respondent expressly stated that it compared the treatment plan with the medical documentation provided to the MIG and determined that there was insufficient medical documentation to support that his injuries fall outside of the MIG. Specific mention is made to the OCF-23 and the OCF-3 that indicate injuries of muscle and tendon at neck and sprain and strain of the following: lumbar spine, thoracic spine, sacroiliac joint, shoulder joint, elbow, wrist and hip. I agree with the respondent that from the applicable denial letters, medical and or other reasons were provided, and it was clear as to what services were being denied.

41With respect to the denial letters of March 8, 2022, October 18, 2022 and October 23, 2023, I find that the respondent again referenced the MIG and stated that there was insufficient medical evidence to indicate that the applicant’s injuries fell outside the definition of a minor injury. The respondent clearly identified the treatment plan in dispute, appended a copy of the applicable treatment plan and specified that it was not approving the recommended services or treatment. I find that these were clear and unequivocal denials, compliant with s. 38(8) of the Schedule. The correspondence contains straightforward and clear language, sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

42For the reasons set out above, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plans in dispute are payable due to non-compliance with s. 38(8) of the Schedule.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are outstanding, the applicant is not entitled to interest.

Award

44I find that the applicant has not established that the respondent is liable to pay an award.

45Pursuant to section 10 of Regulation 664, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

46I find that the applicant did not provide any submissions as to her entitlement to an award. Therefore, I do not find that the respondent is liable to pay an award under s. 10 of Reg. 664.

ORDER

47For the reasons set out above, I find,

i. The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to an IRB;

iii. The applicant is not entitled to the treatment plans in dispute;

iv. No interest is payable;

v. The respondent is not liable to pay an award under s. 10 of Reg. 664; and

vi. The application is dismissed.