Y.F.T.L. v. The Co-operators General Insurance Company, 2020 CanLII 27398

Y.F.T.L. v. The Co-operators General Insurance Company

Citation: YFTL vs. The Co-operators General Insurance Company, 2020 ONLAT 19-002248/AABS

Released Date: 03/31/2020

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:

Y.F.T.L.

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Patrick Baker, Counsel

HEARD: In Writing

November 12, 2019

OVERVIEW

1The applicant, Y.F.T.L., was involved in an automobile accident on March 11, 2016 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from the respondent, Co-operators.

2Co-operators denied Y.F.T.L.’s claims because it took the position that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline¹ (“the MIG”). Y.F.T.L. disagrees.

3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. Y.F.T.L. argues that his injuries take him out of the limits set out by the MIG. Based on treatment that Y.F.T.L. has received to date, the MIG limit has been exhausted.

ISSUES

4The issues in dispute were identified and agreed to as follows:

a. Are Y.F.T.L.’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG?

5If Y.F.T.L.’s injuries are not subject to the MIG limits, then I must determine the issues as follows:

a. Is the medical benefit in the amount of $1,892.20 for chiropractic services, recommended by Point Grey Physio in a treatment plan submitted on March 18, 2017, and denied on September 17, 2017, reasonable and necessary?

b. Is the cost of examination expense in the amount of $2,200.00 for a psychological assessment, recommended by Complex Care Medical & Health Services in a treatment plan submitted on December 14, 2016, and denied on March 3, 2017, reasonable and necessary?

c. Is Y.F.T.L. entitled to an award under Ontario Regulation 664 because Co-operators unreasonably withheld or delayed payments?

d. Is Y.F.T.L. entitled to interest on any overdue payment of benefits?

RESULT

6Based on a review of all the evidence put before me, I find that Y.F.T.L.’s physical and psychological injuries meet the definition of “minor injury” under the Schedule. He is therefore subject to treatment within the MIG limit which has already been exhausted. It is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.

LAW

Minor Injury Guideline

7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in s.3(1).

8The onus is on the applicant to show that his injuries fall outside of the MIG.²

9Y.F.T.L. argues that his injuries go beyond the definition of “minor injury” because he has sustained physical and psychological impairments which remove him from the MIG.

Did Y.F.T.L. sustain physical injuries that remove him from the MIG?

10Although Y.F.T.L. has provided medical evidence confirming he sustained accident-related injuries, none of the evidence shows that his injuries fall outside the MIG. In addition, the evidence submitted by Co-operators confirms that Y.F.T.L.’s physical injuries fall within the MIG.

Family Physician Clinical Notes and Records

11My finding that Y.F.T.L.’s physical injuries fall within the MIG is supported by the following evidence:

i. Y.F.T.L. relies solely on the disputed treatment plans in support of his claim that his physical injuries are not predominantly minor injuries and that the chiropractic treatment plan is reasonable and necessary;

ii. There is no recommendation made by the family physician for chiropractic treatment;

iii. The first post-accident visit to the family physician was on July 29, 2016, approximately four months after the accident, with a complaint of allergy symptoms. There is no mention of any accident-related pain complaints;

iv. The next visit to the family physician was on October 27, 2018, when Y.F.T.L. complained of light-headedness. There is no evidence that ties this presenting complaint to the accident;

v. November 6, 2018, Y.F.T.L. returns to his family physician presenting with bladder issues. Again, this was not related to the accident, nor were any accident-related complaints made; and

vi. April 26, 2019, Y.F.T.L. presented with complaints of occasional vertigo. A CT scan was requested. At a follow up visit on June 18, 2019, Y.F.T.L. advised the vertigo had resolved. The CT scan result were found to be normal.

12Treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be supportive objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment. Persuasive evidence from Y.F.T.L. himself about the effectiveness of treatment in relieving pain or improving function is also helpful.

13I find that the medical evidence submitted by Y.F.T.L. confirms that his physical injuries are predominantly minor. Y.F.T.L. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided for in the MIG.

Did Y.F.T.L. sustain psychological injuries that remove him from the MIG?

14For the reasons that follow, I find that the evidence does not support the conclusion that Y.F.T.L.’s psychological impairments would remove him from the MIG.

15For example:

i. Y.F.T.L. attended a s. 44 assessment with Dr. Nikkou.³ In the report, Y.F.T.L. indicated that he did not have any health status concerns, nor did he experience any feelings of anxiety, sadness or irritability since the accident;

ii. Y.F.T.L. made no complaints to his family physician of any accident-related psychological complaints; and

iii. There has been no post-accident psychological treatment.

16Although Y.F.T.L. alleges that he sustained a psychological impairment as a result of the accident, he has not provided persuasive medical evidence to demonstrate that he suffered psychological impairment as a result of the accident.

Does Y.F.T.L. suffer from chronic pain as a result of the accident?

17Co-operators directed me a Tribunal decision⁴ which discussed six criteria to determine whether an insured suffers from chronic pain. I agree with the adjudicator in MNM that the American Medical Association (AMA) Guides’ criteria are key factors in assessing an insured’s claim of chronic pain.

18According to the AMA, at least three of the criteria must be met for a diagnosis:

(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

(2) Excessive dependence on health care providers, spouse, or family.

(3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

(4) Withdrawal from social milieu, including work, recreation, or other social contracts.

(5) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

(6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.⁵

19Co-operators submits, and I agree, that Y.F.T.L.’s evidence does not support a finding of chronic pain, for example:

i. Y.F.T.L. has not been prescribed medication for his accident-related pain complaints, and therefore cannot be considered dependant on that medication;

ii. There is no evidence of Y.F.T.L.’s dependence on health practitioners, and the family physician records show that there has been minimal, if any reports of accident-related pain complaints;

iii. There is no evidence of avoidant behaviour or deconditioning post-accident;

iv. There is no evidence of social withdrawal, in addition, post-accident, Y.F.T.L. continues to work;

v. There is no evidence of a failure to restore pre-accident function, and the medical evidence suggests there has been little to no impact on Y.F.T.L.’s function; and

vi. There is no evidence of psychological or emotional distress as a result of the accident, aside from a pre-screen report as part of the psychological treatment plan, which is contradicted by the self-report to Dr. Nikkou.

20As Y.F.T.L. has not satisfied at least three of the criteria set out by the AMA Guides, he cannot be found to suffer from chronic pain as a result of the accident. Consequently, I do not find that Y.F.T.L. suffers from chronic pain as a result of the accident.

AWARD

21Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer has “unreasonably” withheld or delayed payments.

22Y.F.T.L. contends that Co-operators unreasonably withheld payment of the treatment plans. I have already found that Y.F.T.L. is not entitled to the treatment plans, therefore Co-operators cannot be found to have unreasonably withheld payment of same. As such. Y.F.T.L. is not entitled to an award.

CONCLUSION

23Y.F.T.L. has not met the onus on him to prove his injuries are not predominantly minor. As such, Y.F.T.L. is not entitled to the treatment plans in dispute as the $3,500 MIG limit has already been exhausted. No interest is owing as there is no overdue payment of benefits. Y.F.T.L. is not entitled to an award. The claim is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para. 24.
3. 3Psychological Assessment Report dated February 28, 2017 – Respondent Submissions at Tab 4, pg. 6
4. 417-007825 v Co-operators Insurance Canada, 2018 CanLII 98282 (ON LAT) at para. 6.
5. 5American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp.23-24