Released Date: 12/16/2020
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:
Jian Jin Gong
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Jian Jin Gong, Applicant
Yu Jiang, Paralegal
For the Respondent:
Unifund Assurance Company, Representative
Alexander Woo, Counsel
HEARD:
By way of written submissions
OVERVIEW
1JJG, was involved in an automobile accident on January 24, 2017, and sought benefits from the respondent, Unifund, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 JJG applied for a cost of examination expense that was denied by Unifund because it determined his injuries were predominantly minor and subject to the Minor Injury Guideline (“MIG”). JJG disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
2The issues I am asked to determine are:
a. Did JJG sustain predominantly minor injuries as defined under the Schedule?
b. Is the cost of an examination expense in the amount of $2,200.00 for a psychological assessment recommended by Somatic Assessments and Treatment in a treatment plan (OCF-18) submitted on October 10, 2017, and denied on October 19, 2017, reasonable and necessary?
c. Is JJG entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
FINDING
3JJG has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. Further, the benefit in dispute is not reasonable and necessary.
LAW and ANALYSIS
Applicability of the Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.” An 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), that they have 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. The Tribunal has also determined that chronic pain with functional impairment or a psychological diagnosis may warrant removal from the MIG.
5Although JJG has provided medical evidence confirming she sustained accident-related injuries, none of the evidence shows that her injuries fall outside the MIG. In addition, the evidence submitted by Unifund confirms that JJG’s physical injuries fall within the MIG.
6JJG submits that her injuries are not minor and that she now suffers from chronic pain. Further, JJG submits that she sustained psychological impairments as a result of the accident. Combined, she submits that, consistent reporting to her treating practitioners and lingering symptoms warrant treatment beyond the MIG. She relies on various clinical notes and records and the OCF-18 in dispute.
7In response, Unifund submits that the objective medical evidence indicates that JJG sustained predominantly minor injuries as a result of the accident. Further, it submits that JJG has not demonstrated that she sustained a psychological impairment as a result of the accident or that she has been diagnosed with chronic pain that causes functional impairment. Unifund’s denials were based on two s. 44 IE’s, one by a general practitioner, the other by a psychologist, both of which determined that JJG sustained impairments that are treatable within the MIG as her physical impairments were minor and there was insufficient evidence to support a diagnosis of a psychological condition.
8I agree with Unifund. On the medical evidence, I find JJG’s accident-related impairments fall within the definition of minor injuries under the Schedule, as they were diagnosed as tenderness of the cervical spine and shoulders by her family physician, Dr. Pang. Further, I note that JJG submits that she suffered soft tissue injuries as a result of the accident. I find limited medical evidence to support JJG’s contention that her accident-related impairments are significant and require treatment outside of the MIG.
9In addition, JJG’s claims are contradicted by the medical records of her primary treatment provider, Dr. Pang. I agree with Unifund that she has not provided medical evidence that supports that she would be prevented from reaching maximal medical recovery if she is kept within the MIG, as required by s. 18(2). As Unifund submits, there are no accident-related referrals or recommendations for treatment as a result of the accident from Dr. Pang, only from her treatment provider. Notably, it does not appear that JJG mentioned accident-related impairments to her family physician at all despite attending on 13 occasions between February 24, 2017 and January 7, 2019.
10JJG alleges that she suffers from chronic pain as a result of the accident which justifies removal from the MIG. In support of her claim of chronic pain, she cites clinical notes and records and her alleged functional impairment. I am not persuaded by JJG submissions that there is evidence to support her claim of chronic pain as a result of the accident. I find no actual diagnosis of chronic pain or chronic pain syndrome in the clinical notes and the medical evidence does not align with any of the six criteria under the AMA Guides. While JJG may have pain, I do not find that her pain causes the type of functional impairment that would warrant removal from the MIG, as there is no evidence of any accident-related prescription history, there is no evidence of significant reliance on any health care provider or family, she has not been referred for a pain program, she is fully independent with her self-care tasks and did not miss any time from work as a result of her accident-related injuries.
11In his s. 44 report, Dr. Mula confirmed that JJG sustained primarily soft-tissue injuries that would not prevent maximal medical recovery under the MIG. JJG has not directed me to any evidence to refute Dr. Mula’s findings, and I find his report persuasive.
12JJG also submits that she has a psychological impairment that justifies removal from the MIG. However, she did not direct me to an actual diagnosis of an accident-related psychological impairment that would warrant removal from the MIG. The pre-screen report JJG relies on indicates a provisional diagnosis and also a referral for an assessment in order to determine a clinical diagnosis. There is no mention of the accident or accident-related psychological or emotional issues in Dr. Pang’s notes that would provide objective support of JJG’s pain complaints or justify the referral. Although she reported mild depression and anxiousness, she has not attended any psychological treatment or assessment or received any counselling since the accident.
13I prefer the s. 44 report of Dr. McCutcheon, who determined that while JJG is experiencing some psychological sequela associated with the accident, there was insufficient evidence to support a diagnosis of a psychological condition.
14For these reasons, I find that JJG has not met her burden to prove that her accident-related impairments warrant treatment beyond the MIG.
Is the treatment and assessment plan reasonable and necessary?
15The clinical notes of Dr. Koifman and Dr. Pang do not establish a causal relationship between the accident and any of JJG’s post-accident pain complaints. Both treatment providers have provided medical evidence that JJG’s post-accident pain symptoms were caused by prolonged computer use and participation in badminton. Further, as stated above, the records contain no evidence of any psychological complaints.
16In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, JJG still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, JJG must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessment. On the evidence, I find that JJG has failed to satisfy that onus.
CONCLUSION
17JJG has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. Although the MIG limits have not been exhausted, JJG is not entitled to payment for the assessment in dispute, as it is not reasonable and necessary. As such, no interest is payable.
18JJG’s application is dismissed.
Released: December 16, 2020
___________________________
Derek Grant
Adjudicator