Ming Xiang Huang v. Co-operators General Insurance Company, 2019 CanLII 148048

Citation: Huang v. Co-operators General Insurance Company, 2021 ONLAT 20-007672/AABS

Licence Appeal Tribunal File Number: 20-007672/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:

Ming Xiang Huang

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nancy Aquilina

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an accident on November 22, 2018, and sought various benefits from the respondent, Co-Operators General Insurance Company (“Co-Operators”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Co-operators denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. 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?

2. If the applicant’s injuries are not considered to be predominantly minor:

   i. Is the applicant entitled to a medical benefit in the amount of $3,164.34 for chiropractic treatment, proposed by Total Recovery Rehab Centre in a treatment plan (OCF-18) dated April 27, 2019?

   ii. Is the applicant entitled to a medical benefit in the amount of $3,701.88 for psychological treatment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan (OCF-18) dated May 28, 2020?

   iii. Is the applicant entitled to a cost of examination in the amount $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan (OCF-18) dated May 2, 2019?

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

RESULT

3Based on the totality of the evidence before me, I find:

(i) The applicant has sustained predominantly minor injuries as defined in the Schedule and is subject to treatment within the $3,500.00 MIG limit.

(ii) As I have found that the applicant’s injuries are within the MIG and the MIG limit has been exhausted, there is no need to determine if the treatment plans are reasonable and necessary and, therefore, no interest is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

4Section 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 in accordance with the MIG. 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.”

5The onus falls on the applicant to prove that his injuries are not predominantly minor and are not limited to the $3,500.00 MIG cap.

Did the applicant sustain a predominantly minor injury?

6I find that the applicant’s injuries are predominantly minor for the following reasons.

7The applicant consulted with his family physician, Dr. Patrick Chiu, following the accident and reported neck stiffness and pain, upper back pain and headaches that, upon examination, was identified as a “whiplash injury”.² The applicant’s treating practitioner, Dr. Georgia Palantzas, chiropractor, completed a treatment plan dated April 27, 2019 that identified predominantly sprain and strain-related injuries, sleep disturbances and headaches.³

8The evidence supports that the physical injuries documented by Drs. Chiu and Palantzas are mainly strain, sprain and whiplash-type injuries that are within the definition of the MIG. As the applicant submits that he suffers from chronic pain and psychological impairments that warrant removal from the MIG, I will consider these submissions.

Does the applicant have chronic pain?

9An applicant has the evidentiary burden of proving that they suffer from chronic pain that causes functional impairment. The applicant points to the records of Dr. Chiu and treatment plan of Dr. Palantzas that he submits identify consistent reports of stiff and sore upper back, neck and cervicogenic headaches that are diagnosed to be chronic in nature and have caused numerous functional limitations.⁴ The applicant further contends that, as per his family physician’s clinical notes and records and extended health records, he relies on pain medication for ongoing pain relief.

10Co-Operators submits that there is no objective evidence of chronic pain and no chronic pain diagnosis in the medical records and relies on the insurer’s physiatry assessment report of physiatrist, Dr. Andrew Gwardjan. Co-Operators contends that Dr. Gwardjan diagnoses the applicant with soft-tissue injuries and states that the applicant reports being fully independent in all aspects of self-care and activities of daily living.⁵

11In addition, Co-Operators submits that in order for the applicant to be removed from the MIG due to chronic pain, the pain itself must be more than a sequelae from the accident and relies on the Tribunal decision Y.X.Y v The Personal⁶ (“Y.X.Y.”) in support.

12I agree with the reasoning in Y.X.Y. that for pain to be considered chronic, it must be more than mere sequelae from injuries and that its severity must cause functional impairment. It does not appear that the applicant’s lingering physical pain has caused functional impairment, as he resumed work-related activities promptly following the accident. According to Dr. Ellen Margolese, psychiatrist, and as noted in her assessment, the applicant reports that he continues to engage in social activities by taking his children to the park, zoo and restaurants.⁷

13Although I am pointed to records of the family physician and the extended health carrier of the applicant’s reliance on pain medication, I note that they were all prescribed prior to the accident for pre-existing headaches and neck pain.

14Therefore, I find that the applicant has not met his onus to prove that he has chronic pain, because other than his submission that he suffers from chronic pain, I have not been pointed to medical evidence of chronic pain or a diagnosis of chronic pain syndrome.

Does the applicant have a psychological impairment?

15I find that the applicant has not provided sufficient and compelling evidence of a psychological impairment that would warrant his removal from the MIG for the following reasons.

16An applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1).

17The applicant relies on Dr. Sharleen McDowall’s psychological assessment report dated May 25, 2020 that diagnoses the applicant with Major Depressive Disorder with anxious distress. The applicant contends that Dr. McDowall, psychologist, opines that the applicant is unable to return to the level of functioning he had before his accident because of this depression and anxiety.⁸

18In response, Co-Operators relies on the psychological assessment report of Dr. Margolese of September 16, 2019, who opines that from a psychiatric perspective the applicant does not meet the threshold for a DSM-5 diagnosis as he continues to function socially and occupationally.⁹ In addition, Co-Operators contends that the psychological assessment states that the applicant continued to work five days per week at his warehouse position and continues to engage in family-related pre-accident daily activities.

19Although the applicant’s treating practitioner, Dr. Palantzas, identifies sleep disorders, phobic anxiety disorders, and other emotional-related disturbances in a treatment plan dated April 27, 2019, I give little weight to this opinion given that it is beyond the scope of practice of a chiropractor to opine on psychological impairments.¹⁰

20The applicant makes one psychological complaint to his family physician, Dr. Chiu, in January of 2020 after more than ten post-accident visits and approximately a year and a half after the accident. The only other psychological complaint in Dr. Chiu’s clinical notes and records produced is made in June of 2020 and is reported to be work-related.¹¹

21I prefer Dr. Margolese’s report over Dr. McDowall’s report as Dr. Margolese’s evidence-based analysis is more consistent with the evidence in the family physician’s clinical notes and records who the applicant sees regularly following the accident. Dr. McDowall’s report appears to be based on the applicant’s self-reported psychological symptoms and I’m not pointed to corroborating evidence. Although Dr. McDowall notes that she has undergone a review of documentation, it is not clear what documents she has reviewed. Dr. Margolese’s report cites and references the applicant’s medical reports and history, and psychological complaints that appear to form the basis for her psychiatric opinion.

22Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that his accident-related physical and psychological impairments justify removal from the MIG.

23As the MIG limits have been exhausted, there is no need to determine if the treatment and assessment plans are reasonable and necessary.

CONCLUSION

24For the reasons outlined above, I find that:

(i) The applicant has sustained predominantly minor injuries as defined in the Schedule and is subject to treatment within the $3,500.00 MIG limit.

(ii) As I have found that the applicant’s injuries are within the MIG and the MIG limits have been exhausted, there is no need to determine if the treatment plans are reasonable and necessary and, therefore, no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended
2. 2Written Submissions of the Applicant at Tab 2A, Clinical Notes and Records of Dr. Patrick Chiu, various dates
3. 3Written Submissions of the Applicant at Tab 6, Clinical Notes and Records of Total Recovery Rehab Centre
4. 4Written Submissions of the Applicant at Tab 6, Clinical Notes and Records of Total Recovery Rehab Centre
5. 5Written Submissions of the Respondent at Tab 10, Insurer Examination Report of Dr. Andrew Gwardjan dated September 16, 2019
6. 62017 CanLII 59515 (ON LAT) (“Y.X.Y.”)
7. 7Written Submissions of the Respondent at Tab 11, Insurer Examination Report of Dr. Ellen Margolese dated September 16, 2019
8. 8Written Submissions of the Applicant at Tab 1, Psychological Assessment Report of Dr. Sharleen McDowall dated May 25, 2020
9. 9Written Submissions of the Respondent at Tab 11, Insurer Examination Report of Dr. Ellen Margolese dated September 16, 2019
10. 10
11. 11Written Submissions of the Applicant at Tab 2A, Clinical Notes and Records of Dr. Patrick Chiu, various dates