Date: 2018-09-20

Tribunal File Number: 17-005138/AABS

Case Name: 17-005138 v Allstate Insurance Company of Canada

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:

Applicant

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

Wei Guo, Paralegal

For the Respondent:

Andrew Franklin, Counsel

Interpreter:

Julie Li (Mandarin) May 14, 2018

Cheng Zhang (Mandarin) June 18, 2018

Heard in Person:

May 14 and June 18, 2018

OVERVIEW

1[The applicant] was injured in an automobile accident (“the accident”) on December 23, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the applicant’s claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant’s position is the opposite.

3If the applicant’s position is correct, then I must decide whether the medical treatment claimed in this application is reasonable and necessary.

4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary, as the $3,500.00 maximum benefit for minor injuries has already been paid by the respondent.

ISSUES

5The parties agreed the following issues are in dispute for this hearing as listed within the order dated January 18, 2018:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500.00 treatment limit within the Minor Injuries Guideline (MIG)?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,984.20 for physiotherapy services recommended by York Rehab in a treatment plan submitted October 29, 2015, and denied by the respondent on October 29, 2015?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,580.79 for physiotherapy services recommended by North York Rehab in a treatment plan submitted November 24, 2015, and denied by the respondent on November 24, 2015?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,969.10 for physiotherapy services recommended by North York Rehab in a treatment plan submitted May 19, 2016, and denied by the respondent on May 31, 2016?

v. Is the applicant entitled to receive a medical benefit in the amount of $1,580.79 for physiotherapy services recommended by North York Rehab in a treatment plan submitted June 16, 2016, and denied by the respondent on June 16, 2016?

vi. Is the applicant entitled to receive a medical benefit in the amount of $1,990.03 for psychological services recommended by Lingyu International Psychology Centre in a treatment plan submitted August 9, 2017, and denied by the respondent on August 21, 2017?

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

Motions Raised by the Respondent at the outset of the Hearing

Motion 1

6The respondent objected to the applicant filing written submissions at the hearing which had not been served upon the respondent by the document filing deadline of April 17, 2018 as noted in the Order dated January 18, 2018 (“Order”). The respondent stated the forum for the hearing is an in person hearing and the evidence should be in the form of documents and oral testimony only. Further, the respondent stated that it would be prejudiced by not having the opportunity to respond to the written submissions. The applicant did not provide an explanation why they wanted to admit written submissions at the hearing. I ordered that the written submissions not be admitted at the hearing as the respondent was not provided an opportunity to respond to them and they were not filed by the document deadline noted within the Order dated January 18, 2018.

Motion 2

7The respondent requested that the applicant not be allowed to proceed on the claim for an award under s. 10 of Regulation 664 (“award”). The respondent stated that no particulars were provided to it in advance of the hearing. The respondent states in the alternative, if the applicant is allowed to proceed with their claim for an award that the scope of the entire examination be limited to the claims representative for Allstate Insurance Company of Canada (“Allstate”), Krystal Barraclas, and the adjuster’s log notes. The applicant provided no response to the respondent’s oral submissions. I ruled that the applicant could proceed with the claim for an award but the examination would be limited to the examination of Krystal Barraclas and the log notes. The claims representative has knowledge of the claim and the respondent has already seen the log notes and is aware of their contents. On day two of the hearing the applicant withdrew their claim for an award.

Motion 3

8The respondent requested to admit a Financial Services Commission of Ontario (“FSCO”) decision in support of their position. A copy of the decision was provided to the applicant the weekend prior to the hearing. The respondent stated it forgot to include the decision in their document brief when it was filed. The applicant objected to the late filing of the document and stated that FSCO decisions are only guiding. I ordered that the FSCO decision would not be allowed as it was beyond the deadline of April 24, 2018 ordered by the Tribunal for filing documents for the hearing. There were no exceptional circumstances provided by the respondent regarding the request to file this decision at the hearing.

RESULT

9I find that the applicant’s injuries fall within the MIG. Based on the evidence before me, I do not find the applicant suffers from a psychological impairment, or chronic pain as a result of the accident. It is therefore unnecessary to consider the reasonableness of the treatment plans, or the issue of interest. The respondent is not entitled to their request for costs.

ANALYSIS

The Minor Injury Guideline

10Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

11Section 3(1) of the Schedule 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.

12The onus is on the applicant to show that his/her injuries fall outside of the MIG.³

Did the Applicant Sustain a Psychological Impairment as a Result of the Accident?

13I do not find based on the evidence before me that the applicant suffers from a psychological impairment as a result of the accident that entitles the applicant to treatment outside of the MIG and will provide my reasons within the analysis below.

14I find against the applicant because:

i. The applicant stated that since the accident the following psychological impairments have impacted the applicant: adjustment disorder, anxiety, depression, a fear of driving, and has difficulty sleeping. There is inadequate evidence of a psychological impairment noted within the clinical notes and records (“CNRs”) of the applicant’s family doctors; Dr. J. Kwok, Dr. R. Hsu, and Dr. C Yeung from January 28, 2014 to December 1, 2017. The first notation documenting a psychological impairment is contained within Dr. Yeung’s CNRs which included a referral made on January 18, 2018 for a consultation with a Psychologist through Chinese Family Services of Ontario.⁴ This is more than four years after the date of the accident.

ii. The applicant testified that they had psychological complaints prior to this date but provided no explanation why they had not reported them to any of the family doctors prior to January 18, 2018. The referral noted the diagnosis of: depression, anxiety, PTSD, and insomnia. Dr. Yeung testified that the diagnosis and referral were both made based upon the responses on questionnaires obtained through the applicant’s self-reporting. There is nothing noted within these questionnaires which references the accident. Dr. Yeung made no reference within his CNRs to the psychological diagnoses he made to the accident. For these reasons, I am not persuaded that the diagnoses made by Dr. Yeung are a result of the accident.

iii. Dr. Yeung prescribed Elavil to assist the applicant with difficulty with sleep. The applicant testified that when experiencing difficulty sleeping, medication is taken to assist with relaxation. The prescription summary provided dated February 14, 2018 did not reference that Elavil had been filled. There was no further evidence to support that the applicant took the Elavil prescribed by Dr. Yeung to address the difficulty the applicant experienced with sleep.

15The applicant underwent a psychological pre-screen with Selina Zhang on June 15, 2016, under the supervision of Dr. N. Browne, Psychologist. A treatment plan dated June 17, 2016⁵ was submitted to Allstate requesting a psychological assessment. The treatment plan noted the applicant had reported experiencing the following: insomnia, exhaustion, nervousness, worry, frustrated, irritable, anger towards others, and a decrease in memory. The treatment plan was withdrawn and re-submitted by the applicant on August 9, 2017 and is in dispute for this hearing.

16The applicant underwent a psychological assessment on January 8, 2018 and a report was issued by Dr. Browne on January 15, 2018.⁶ The report diagnosed the applicant with Adjustment Disorder and Mixed Anxiety with Depressed Mood. The assessment was based upon a clinical interview and self-report questionnaires; multi-dimensional self-report and two psychological questionnaires which were translated into the Mandarin language. Three clinical tests were administered: Beck Anxiety Inventory, Beck Depression Inventory II, and the Multidimensional Pain Inventory. Dr. Browne testified that she relied on the information provided in the clinical interview conducted by Li Tang, a Psychotherapist and the clinical test results to yield the diagnosis within her report. Dr. Browne testified that adjustment disorder was not the applicant’s predominant injury.

17I afford little weight to the Psychological report of Dr. Browne for the following reasons:

i. The psychological assessment was done on the applicant more than four years after the accident. The applicant’s history and subjective complaints were obtained through the clinical interview and self-report questionnaires administered by Li Tang.

ii. I afford no weight to the three clinical tests which were administered to the applicant as they do not note the applicant’s name, the name of the person who administered the tests, nor the date in which these tests were administered. Therefore, I cannot definitively conclude that the results obtained on these tests are the applicant’s test results.

iii. While I do accept that the applicant presented with psychological symptoms following the accident, I find the gap of four years in the applicant’s initial reporting of psychological symptoms to be a significant gap in time. I do not find that the results obtained through the applicant’s self-reporting alone can conclude that the applicant sustained a psychological impairment as a result of the accident.

Does the Applicant Suffer from Chronic Pain as a Result of the Accident?

18The applicant stated she experienced the following physical impairments since the accident: tingling and numbness in her right leg, neck and back pain, sleeplessness due to pain, and headaches. As these injuries have not resolved, it is the applicant’s position they are chronic in nature. The applicant received physical rehabilitation treatment from North Toronto Rehabilitation Clinic from December 29, 2014 to June 21, 2016. The CNRs of North Toronto Rehabilitation note the applicant was experiencing upper back and neck pain and has difficulty sleeping due to the pain. The applicant testified that the treatment which was received was helpful in alleviating the pain but that the applicant stopped treatment when the insurer stopped funding it.

19The CNRs of Dr. Yeung note that the applicant saw Dr. Yeung on January 5, 12, 30, 2015 and reported pain in the neck, shoulders, and back. Dr. Yeung prescribed Mobicox on January 5, 2015 to relieve the applicant’s musculoskeletal pain. The applicant filled this prescription on January 5, 2015. X-rays done January 5, 2015 of the applicant’s cervical and lumbar spine and the bilateral shoulders noted mild degenerative changes⁷. An MRI done January 25, 2015⁸ noted mild degenerative changes. The MRI further noted at L4-L5 level, a disc bulge and mild narrowing of the right and left intervertebral foramina. There was no evidence of disc herniation and the lumbar spine was unremarkable. Dr. Yeung testified that he did not have any imaging prior to the accident to compare the findings. After January 30, 2015, the applicant did not see the family doctor again regarding back pain until February 18, 2016 when the applicant visited Dr. Kwok⁹. The applicant saw Dr. Yeung for the first time since January 30, 2015 on May 17, 2016. The CNR noted: “back pain is relieved now”.¹⁰ The applicant did not report any further complaints relating to pain to Dr. Yeung until January 18, 2018.

20I am not persuaded that the applicant suffers from chronic back pain and headaches as a result of the accident for the following reasons. The evidence supports the applicant saw Dr. Yeung the month following the accident to address the reported pain experienced but the applicant did not see the family doctor for pain complaints again until February 2016. I acknowledge during this period the applicant was receiving physical treatment through North Toronto Rehabilitation. The applicant stopped receiving facility based treatment in June 2016. There is no further evidence of the applicant reporting back pain to the family doctor until January 18, 2018. This is seventeen months since the applicant received any physical treatment. Dr. Kwok’s CNRs reference bilateral pain the hands pain in September and October 2016, and note right knee pain in November 2017¹¹. No evidence has been led to support these are accident-related. There is also no imaging produced prior to the date of the accident to compare to the imaging done on the applicant in January 2015. No further imaging has been produced after January 2015 to see if there have been any further changes to the applicant’s spine. It was noted by Dr. Yeung in May 2016 that the applicant’s back had resolved.

21The applicant underwent an insurer’s examination (“IE”) for a physiatry assessment with Dr. R. Williams on August 7, 2015, and a report was issued August 21, 2015¹². A Mandarin interpreter was present for the assessment. Dr. Williams conducted an interview and performed a physical examination on the applicant. The results from the x-rays conducted on January 5, 2015 and the MRI done on January 25, 2015 were reviewed by Dr. Williams. Dr. Williams diagnosed the applicant with WAD II, and lumbar spine strain/sprain. Dr. Williams concluded that the applicant sustained uncomplicated soft tissue injuries in the cervical and lumbar spine that are minor in nature and can be treated within the MIG parameters. I prefer the evidence provided by Dr. Williams who is a specialist in physical medicine. His conclusions as noted within his report are supported by the interview and physical examination he performed on the applicant. Dr. Williams also reviewed the x-ray and MRI results and concluded the applicant sustained uncomplicated soft tissue injuries from the accident. There has been no report obtained by the applicant which challenges the findings of Dr. Williams.

22The imaging reports note degenerative changes. There was no imaging produced prior to the date of the accident, and there has been no further imaging produced by the applicant since January 2015. There has been no medical opinion provided that the disc bulge was caused by the accident. For these reasons, I do not find that that the disc bulge was caused by the accident.

Respondent’s Request for Costs

23During the respondent’s closing oral submissions it requested a cost award against the applicant. The respondent stated that the in-person hearing was requested by the applicant but was opposed by the respondent. The respondent provided the following reasons in support of its request for costs. There was a one hour delay on the first day of the hearing as the applicant’s legal representative requested a second document brief from her office to be provided for the adjudicator. The applicant’s family doctor, Dr. Yeung was not served with a summons to attend the hearing until 5:00 pm on May 11, 2018 and was unable to attend the hearing on May 14, 2018 which necessitated an extension of the hearing. The applicant had not provided the particulars regarding the claim for an award prior to the hearing and a representative from Allstate Insurance was available for the entire first day of the hearing on May 14, 2018. The applicant withdrew the claim for an award at 11:06 am on June 18, 2018.

24In response, the applicant initially claimed an award from the respondent based on the respondent unreasonably withholding benefits from the applicant. The applicant stated a review of further case law was done following the first day of the hearing and the applicant made the decision to withdraw the claim for an award. The applicant further stated both parties agreed to an in-person hearing as the applicant required an interpreter. The interpreter arrived half an hour late on the first day of the hearing. The additional document brief arrived at the hearing shortly after. The adjudicator started the hearing prior to the arrival of the additional document brief so the hearing would not be further delayed.

25Rule 19.1 of the Safety, Licensing Appeals & Standards Tribunal of Ontario Common Rules of Practice and Procedure, October 2, 2017 notes that a party may request the Tribunal award costs against a party if that party has acted “unreasonably, frivously, vexatiously, or in bad faith.” I do not find the applicant’s conduct to fall within the confines noted as it relates to an award for costs for the following reasons. The onus is on the applicant to prove entitlement to the benefits claimed for this hearing. The applicant required an interpreter and it was noted on consent in Adjudicator John’s amended order dated April 25, 2018 that the hearing would proceed in person. There was a delay to the start of the hearing on May 14, 2018 due to the late arrival of the interpreter. The hearing continued upon the interpreter’s arrival and was not delayed as a result of the late arrival of the additional document brief. The hearing did continue for a second day on June 18, 2018 but it is doubtful all of the witnesses listed could have been called on the first day. This was due to the interpreter arriving late, and the respondent raised three motions at the outset of the first day of the hearing. The applicant had not provided particulars of the award being claimed prior to May 14, 2018. However, I made an oral ruling which provided a remedy for this at the outset on the first day of the hearing. This was in response to the motion raised by the respondent. The applicant heard the testimony of the adjuster on May 14, 2018 and then reviewed further case law and decided to withdraw their claim for an Award. I do not find this necessitates that the applicant has behaved unreasonably, frivously, vexatiously, or in bad faith. The request for costs is without merit and is dismissed.

CONCLUSION

26For the reasons outlined above, I find that:

i. The applicant’s injuries are predominately minor injuries that fall within the MIG as defined within the Schedule and as a result is subject to the $3,500.00 MIG limit which has been paid, and;

ii. I therefore do not need to consider if the treatment plans in dispute are reasonable and necessary. As no benefits are payable, no interest is payable.

iii. The applicant’s claim is dismissed.

Released: September 20, 2018

__________________________

Kimberly Parish, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Exhibit 10 - Referral to Chinese Family Services of Ontario, contained within the CNRs of Dr. Yeung, Respondent’s brief, Tab 40B, at 8
5. 5Exhibit 18 – Treatment plan submitted by Dr. N. Bowne dated June 17, 2016, Respondent’s brief, Tab 20
6. 6Exhibit 1 – Psychological Report of Dr. Browne, Applicant’s brief, Tab L
7. 7Exhibit 11 – CNRs of Dr. Yeung, Respondent’s brief, Tab 40 A, at 24
8. 8Ibid, at 18
9. 9Exhibit 9 - CNRs of Dr. Kwok, Respondent’s brief, Tab 39B, at 8
10. 10Supra note 7, Tab 40 B, at 25
11. 11Supra note 9, Tab 39C, at 4, 5
12. 12Exhibit 16 – Dr. R. Williams Physiatry Report, dated August 21, 2015, Respondent’s brief, Tab 45