H. Z. H. v. Co-operators General Insurance Company, 2019 CanLII 40252

Citation: H. Z. H. vs. Co-operators General Insurance Company, 2019 ONLAT 18-001013/AABS

Date: March 21, 2019

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:

H. Z. H.

Appellant

and

Co-operators General Insurance Company

Respondent

PANEL:

Derek Grant

Appearances:

For the Appellant:

Yu Jiang, Paralegal

For the Respondent:

Emily Schatzker, Counsel

Heard: In Writing

Hearing: November 5, 2018

Overview

1The applicant (“H.Z.H.”) was injured in an automobile accident (“the accident”) on September 5, 2015, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). When his claims for benefits were denied by the respondent (“Co-operators”), H.Z.H. applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

2Co-operators denied H.Z.H.’s claims because it determined that all of his injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). H.Z.H.’s position is the opposite.

3If H.Z.H.’s position is correct, then I must address if the medical treatment plans claimed are reasonable and necessary.

4If Co-operator’s position is correct, then H.Z.H. is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by section 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary.

Issues

5Did H.Z.H. sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to medical benefits limited by the MIG?

6If H.Z.H.’s injuries are not within the MIG, then I must determine the following issues:

a. Is the medical benefit in the amount of $2,790.95 for chiropractic services, recommended by Point Grey Physio in a treatment plan dated February 17, 2016 reasonable and necessary?;

b. Is the cost of examination expense in the amount of $2,000.00 for a psychological assessment, recommended by Perfect Choice Psychological Services in a treatment plan dated September 23, 2015 reasonable and necessary?

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

Result

7Based on a review of the evidence before me, I find that H.Z.H.’s injuries are subject to treatment within the MIG. It is therefore unnecessary to consider whether the disputed treatment plans are reasonable and necessary.

8I find that H.Z.H. is not entitled to interest.

Analysis

The Minor Injury Guideline

9Section 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”.

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

11H.Z.H. argues that his injuries fall outside the MIG because of both his physical and psychological injuries. The onus is on H.Z.H. to show that his injuries fall outside of the MIG³.

12For the reasons that follow, I find that the evidence establishes that H.Z.H. sustained accident-related physical injuries, but that those injuries are defined as predominantly minor.

13In a post-accident visit to his Family Physician, Dr. Benson Lau, H.Z.H. was diagnosed with cervicogenic pain and soft tissue injuries. Additional visits consisted of pain complaints including back and muscle strains. Dr. Lau recommended physiotherapy, massage and acupuncture and/or swimming/exercise. At no time did Dr. Lau recommend chiropractic treatment.

14A diagnostic imaging report from Top Medical Imaging⁴ regarding the cervical and lumbar spine revealed no prevertebral soft tissue swelling or fracture. Further, the report indicated that alignment was normal and found the exam to be unremarkable.

15A second diagnostic imaging report from Dr. S.W. Joseph Wong, Physiatrist⁵, revealed no disc protrusion or stenosis of the lumbar spine, minor arthritis and no radiculopathy found. On a June 30, 2016 visit, Dr. Wong diagnosed H.Z.H. with myofascial injuries; however, Dr. Wong made no recommendations for physical treatment.

16In his report dated February 17, 2016⁶, approximately five months after the accident, Dr. Peter Counti, Chiropractor, diagnosed H.Z.H. with injury of muscle and tendon at neck level, sprain and strain of lumbar spine, lumbar and other intervertebral disc disorders with radiculopathy, sprain and strain of other parts at shoulder girdle, nonorganic sleep disorders, phobic anxiety disorders, tension-type headaches, vertigo of central origin and sprain and strain of ribs and sternum.

17In support of the above-noted diagnosis from Dr. Counti, H.Z.H. further relies on the report of Dr. Counti, who opines that H.Z.H. suffered from intensified symptoms of low back and left leg pain, which may be related to a re-injury associated with work tasks. Dr. Counti further opines that “there are renewed positive findings of left lower extremity numbers/parasthesiae and pain during tests of lumbar disc integrity and nerve root tension, suggesting significant radiculopathy. As indicated in paragraph 15 above, diagnostic imaging found no signs of radiculopathy.

18For the reasons that follow, I place very little weight on Dr. Counti’s report. First, Dr. Counti’s report that H.Z.H. suffering from physical injuries that may be related to a re-injury associated with work tasks suggest that are no accident-related injuries. Second, any psychological findings are beyond Dr. Counti’s area of expertise. Third, there are lumbar MRI reports which contradict Dr. Counti’s reporting.

19H.Z.H. has not provided me with compelling evidence to establish his physical injuries are anything but minor. To the contrary, I find that the evidence supplied is consistent with a minor injury. For example, the bone scan results⁷ were found to be normal. Again, I am not presented with evidence of how the accident-related injuries H.Z.H. claims to have suffered are not minor.

20Both Dr. Lau and Dr. Wong have various records of visits from H.Z.H. as noted above. While both have diagnosed H.Z.H. with various strains, Dr. Lau makes no recommendation for chiropractic treatment. Dr. Wong, a Physiatrist, also make no recommendation for chiropractic treatment. In fact, both Doctors recommend physiotherapy as a means of physical treatment.

21In the insurer’s assessor’s report⁸, Dr. Burke, Physiatrist, comments on H.Z.H.’s subjective self-reporting, that H.Z.H “would rather do physiotherapy in London” and that his pain was improving with physiotherapy. Dr. Burke, similar to Drs. Lau and Wong also recommended “active physiotherapy, less acupuncture, massage and chiro”. It’s not clear, at the time of the insurer assessor’s report, whether H.Z.H. had not yet exhausted the limits of the MIG or after the amount was exhausted and H.Z.H. claims he still needs more treatment.

22The reports from Dr. Lau and Dr. Wong support the injuries sustained by H.Z.H. are minor in nature. Based on the combined evidence of the diagnostic reports, clinical notes and records from the Doctors and the IE assessor’s report, I find that H.Z.H. has sustained minor injuries from the subject accident. Further, I find that H.Z.H.’s own treating physician at no point recommended chiropractic treatment. As a result, H.Z.H. has not satisfied his onus to prove that he has suffered anything but minor physical injuries as a result of the subject accident.

23The parties focused their submissions on opposing psychological reports and the H.Z.H.’s self-reporting. For the reasons that follow, I find that H.Z.H. did not suffer from any accident-related psychological injuries that are not considered minor in nature.

24H.Z.H. relies on the report⁹ of Dr. Min Che Yeh, Psychologist with Perfect Choice, dated September 23, 2015. Her treatment plan suggested that H.Z.H. receive psychological treatment.

25From his submissions, it also appears H.Z.H. is advocating for his removal from the MIG due to psychological impairments. While he does not explicitly state this, M.K. reproduced portions of Dr. Yeh’s report, which advocates for H.Z.H.’s removal from the MIG due to his psychological impairments.

26Dr. Yeh’s report diagnosed H.Z.H. with mixed anxiety and depressive disorder, specific (isolated) phobias and other sleep disorders. She opined that a claimant diagnosed with a significant psychological impairment cannot be treated within the MIG. Therefore, Dr. Yeh concluded H.Z.H.’s psychological impairments do not fall within the limits of the MIG.

27Co-operators’ psychological assessor, Dr. Peter Cobrin¹⁰, in contrast to Dr. Yeh, noted that H.Z.H. does not feel depressed about the accident. Dr. Cobrin does note that H.Z.H. complains of low mood, and has some nightmares of the accident. Dr. Corbin’s report indicates H.Z.H. continues to drive, to the point that he would drive from London to Scarborough for physical treatment at Point Grey Physiotherapy. Dr. Corbin’s testing results indicated H.Z.H. is not suffering from any diagnosable psychological condition. Dr. Corbin concluded that H.Z.H. presented as an individual who did not warrant psychological treatment outside of the MIG.

28While H.Z.H. emphasized portions of Dr. Yeh’s report, given the conflicting report of Dr. Corbin, I find that H.Z.H.’s submissions and evidence are insufficient to establish that the accident-related injuries suffered from a psychological standpoint are anything but minor.

29My review of the rest of H.Z.H.’s evidence, such as H.Z.H.’s self-reporting, leads me to the same conclusion. From the evidence and self-reporting of H.Z.H., it would appear that seeking psychological help was not something he was ever inclined to pursue. H.Z.H. advised Dr. Corbin during the assessment, that his biggest complaint is physical pain. H.Z.H. said from a psychological perspective, he had no problem coping. Further, H.Z.H. indicated he only needs help for his physical problems and not for any psychological issues.

30From a psychological perspective, H.Z.H.’s only subjective concern was worry when driving by the intersection where the accident had occurred. H.Z.H. again reiterated that he believed he did not require psychological treatment.

31I agree with Dr. Corbin’s conclusion that H.Z.H. “does not believe that the psychological problems are sufficiently severe in order to require psychological treatment, it is my opinion that he (H.Z.H.) is not suffering from any diagnosable psychological condition. As a result, I find that there is no clear indication that H.Z.H.’s reported psychological complaints are not accident-related sequelae, and thus he is subject to the treatment limit of the MIG.

32H.Z.H. is limited to the $3,500.00 limit in benefits available under the MIG, which has been exhausted, and I therefore do not need to address the question of whether the treatment plans are reasonable and necessary.

Section 38 non-compliance

33H.Z.H. submitted that the September 23, 2015 treatment plan was denied February 9, 2016. As a result, H.Z.H. claims Co-operators was in non-compliance with section 38(8) of the Schedule. Section 38(8) requires that within 10 business days after it receives a treatment plan that it does not agree to pay for, the insurer shall give notice to the insured including the medical and any other reasons why the insurer considers the treatment plan not to be reasonable and necessary.

34Upon my review of the non-compliance claim, the treatment plan was dated September 23, 2015; however, it was submitted to Co-operators on December 22, 2015, with Co-operators responding on December 23, 2015. I find the timeliness of Co-operators response to the September 23, 2015 treatment plan adhered to the requirements of section 38(8).

35Co-operators complied with the section 38(8) requirements, and is therefore not subject to the requirements laid out in section 38(11) of the Schedule.

Award under regulation 664

36H.Z.H. did not raise the issue of award in the Tribunal Application. There was no formal request to add this issue. Instead, counsel raised the argument in the written submissions. H.Z.H. provides no evidence for an award pursuant to s.10 of Regulation 664 of the Insurance Act.

37Since I found that no benefits are payable, Co-operators cannot have been found to have unreasonably withheld payment. As a result, an award is not warranted in the circumstances of this case.

Conclusion

38H.Z.H. sustained predominantly minor physical and psychological injuries that fall within the MIG. Accordingly, H.Z.H. is not entitled to payment for the treatment plans claimed in this application. H.Z.H. is not entitled to an award. His application is dismissed.

Released: April 8, 2019

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