X.K.Y. v. The Co-operators General Insurance Company, 2020 CanLII 40350

Licence Appeal Tribunal

Citation: X.K.Y. vs. The Co-operators General Insurance Company 2020 ONLAT 19-002094/AABS

Released: May 20, 2020

Tribunal File No.: 19-002094/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c.I.8, in relation to statutory accident benefits

Between:

X. K. Y.

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

PANEL:

Nidhi Punyarthi, Adjudicator

APPEARANCES:

For the Applicant:

Yu Jiang (Denise), Licensed Paralegal for the Applicant

For the Respondent:

Julianne Brimfield, Lawyer for the Respondent

HEARD:

Via Written Submission

OVERVIEW

1On May 9, 2016, the applicant got into a car accident. He applied for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 ("Schedule")¹ to the respondent. The respondent denied his claim for benefits. Afterwards, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal").

2The matter proceeded to a written hearing before me.

ISSUES IN DISPUTE

3I have been asked to decide the following issues²:

i. Did the applicant sustain predominantly minor injuries as defined in the Schedule?

ii. Is the applicant entitled to a medical benefit in the amount of $2,230.64 for chiropractic treatment recommended by Point Grey Physio in a treatment plan (OCF-18) submitted on September 28, 2016 and denied on February 28, 2017? Is the applicant entitled to interest on any overdue payment of benefits?

iii. Is the applicant entitled to an award under O. Reg. 664 ("Regulation 664")³ because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4I find that the applicant's injuries are minor injuries as defined in the Schedule. He is not entitled to the treatment plan or interest at issue. I also find that the respondent in this case did not conduct itself in a manner attracting an award under Regulation 664.

ANALYSIS

Accident Description

5The applicant was a driver pulling out of a parking lot at the time of the accident. Another car hit the passenger side of his vehicle. There was no secondary impact.⁴

Minor Injury Analysis

6If an injury from an accident falls within the definition of a "minor injury" in the Schedule, then the amount of benefits that the insured person is entitled to is limited to $3,500.⁵ The limit does not apply if the applicant establishes that he has a pre-existing medical condition that meets the criteria of s.18(2) of the Schedule.⁶ Additionally, the Tribunal's case law has interpreted the Schedule to establish that psychological conditions and chronic pain do not fall within the definition of "minor injury."

7In this case, the respondent determined that the applicant's injuries from the accident were "minor" as defined in the Schedule, and that none of the exceptions apply. The applicant has also exhausted the $3,500.

8The applicant submits that his injuries are not minor. In his submissions, he states that he meets all three exceptions to the definition of a minor injury: a pre-existing medical condition under s. 18(2) of the Schedule, psychological conditions, and chronic pain.

9The evidence in this case does not support the applicant's submissions. I will explain this in the following paragraphs.

10The applicant relies on the documentation prepared by his treating chiropractor, Dr. Counti. In the forms filed, Dr. Counti attests that the applicant needs treatment beyond the $3,500 limit.⁷ A month later, he also recommends a treatment plan for further chiropractic treatment.⁸ Three of the issues in dispute concern these recommendations of Dr. Counti.

11The applicant filed Dr. Counti's notes as evidence for this hearing. These notes show:

i. Days after the accident, on May 12, 2016, the diagnosis is "sprain/strain".

ii. From the outset, it is noted that the applicant is working as a driver.

iii. In July 2016, it is noted that the applicant was in the driver's seat when he was hit, and the impact was on the passenger side of his vehicle. It is noted that there was no secondary impact.

iv. On August 11, 2016, the note says "50% improvement." The same note says as follows under the heading "aggravating factors": "lift/carry (<20 lb), stooping, driving".

v. Both the July and August 2016 notes record sleep disturbance as an associated symptom. The August note also records mild driving anxiety. Anxiety and sleep disturbance are not within Dr. Counti's area of expertise, so presumably he recorded these issues as reported and did not test them. As per the notes in evidence, Dr. Counti did not recommend seeking a referral to the appropriate specialist. On September 27, 2016, in the treatment plan at issue, under "barriers to recovery," Dr. Counti notes: "inadvertent aggravation due to work tasks (driver)".⁹

vi. There are no treatment records after December 2016. The applicant does not dispute that he discontinued seeing Dr. Counti after this date.

12The applicant also filed the notes of his family doctor, Dr. Shew. These notes show:

i. On July 5, 2016, a diagnosis of muscular strain/sprain of right shoulder and lower back. There is a note that the applicant has difficulty sleeping, but there is no referral to a sleep or pain specialist. The note also says that the applicant has declined oral medications.

ii. On September 1, 2016, there is a note that the applicant declined oral medications. There is no reference to shoulder issues. The recommendations are to "continue heat packs" and "avoid triggers".

iii. Following a significant gap, on March 7, 2018, there is a record of the applicant experiencing pain and a note that he works as a truck driver, which requires him to sit 8 hours per day and carry large objects. The doctor also notes that the applicant was not exercising regularly and was not using pain medication. There is no reference to the accident.

iv. Following another long gap, on July 30, 2019, there is a note of tendinopathy in the rotator cuff. Again, however, there is no mention of the accident. There is also no referral to a pain specialist.

v. On August 16, 2019, the applicant's bilateral shoulder ultrasound results were unremarkable. The lower back x-ray showed degenerative changes. There is no mention of the accident.

13For an impairment to be considered under the Schedule, it must be as a result of the accident.¹⁰ In this case, it is not clear that the ongoing pain of the applicant was caused by the accident.

14This is because Dr. Counti's request for additional treatment beyond the minor injury limits is telling. Significantly, Dr. Counti acknowledges, in his request for additional treatment, that the applicant may have aggravated his condition through his work as a driver.¹¹ Both Dr. Counti and Dr. Shew's notes show that the applicant went to work as a driver, and this work aggravated any aches and sprains he had suffered from the accident.

15Based on this evidence, I find myself asking the following questions: What would the applicant's condition have been, had he not engaged in the work tasks? Would he still be experiencing the same degree and nature of pain? These questions are not answered on the evidence. Also, despite the fact that the respondent has raised causation as an issue, the applicant's submissions are silent on causation.

16From the evidence before me, it appears likely that the specific complaints of the applicant were caused by his decision to work and engage in work tasks as opposed to the accident.

17There is no question that the accident caused initial injuries to the applicant. Based on the evidence before me, the record of these injuries mirrors the definition of a minor injury in the Schedule. In the notes closest to the date of the accident, the injuries are described as sprains and strains. The family doctor documented the injuries as soft tissue injuries. There is no evidence to suggest that these injuries are anything but minor.

18After the accident, the applicant went through a venipuncture procedure.¹² Neither party suggests that this procedure was as a result of the accident.

19Then, in August 2016, and later in 2018 and 2019, the evidence shows the following:

i. Dr. Counti himself acknowledges that the applicant may have aggravated his pain by persisting in driving.

ii. Dr. Counti's notes show that the applicant engaged in work-related activities such as stooping and lifting or carrying up to 20 pounds.

iii. Dr. Shew advised the applicant to "avoid triggers." By engaging in the driving and work-related activities, the applicant went against this advice.

20This evidence does not show me that the applicant's injuries from the accident were so significant that they could not be treated within $3500. Rather, it is more likely from this evidence that the applicant experienced pain by engaging in the long hours of driving, and by stooping and lifting and carrying up to 20 pounds. A work-related injury is not an injury caused by the accident.

21Based on this evidence, I can only conclude that the applicant's injuries from the accident were minor injuries. The respondent was correct in its determination in this regard.

22The applicant claims to fall within all three exceptions to a minor injury. However, there is no objective evidence before me confirming any of the following:

i. A pre-existing condition that meets the requirements of s.18(2) of the Schedule;

ii. A psychological condition caused by the accident; or

iii. A chronic pain condition caused by the accident.

23The applicant is supposed to present verifiable, objective, and authoritative evidence of any of the above exceptions. He has failed to do so.

24The applicant has only submitted the chiropractic and family doctor notes, which I have previously reviewed. These records alone are unhelpful in determining whether the applicant falls within any of the three exceptions.

25There is no diagnosis in the evidence before me from either a psychologist or a chronic pain specialist on the applicant's behalf. The chiropractor and the family doctor can provide some insight on what the applicant reported but cannot provide a complete picture as they cannot diagnose any of these conditions.

26In addition, there is no compelling evidence before me of a pre-existing medical condition that was documented by a healthcare practitioner before the accident and that the applicant cannot achieve maximal recovery within the minor injury limit due to this pre-existing condition. In order to make this finding, there needs to be actual documented evidence of that condition's existence before the accident and of its role in preventing the applicant from recovering within the minor injury limit. There is no such evidence before me in the record.¹³ Even the treatment plan at issue provides that the applicant had no pre-existing condition.¹⁴

27I find that the applicant's injuries from the accident are minor injuries as defined in the Schedule. The applicant has also failed to establish that he meets any of the exceptions to the minor injury designation. He cannot access treatment beyond the $3,500 limit.

Chiropractic Treatment Plan

28Following my finding regarding the designation of the applicant's injuries, I also confirm the respondent's decision to deny the treatment plan at issue. The limit for treating minor injuries is exhausted, and the applicant has been unable to show his entitlement to treatment outside the limit.

29Given this finding, it is not necessary for me to determine whether the treatment plan at issue is otherwise payable. In other words, I do not need to make a finding as to whether the treatment plan at issue is to address injuries caused by the accident and whether it is reasonable and necessary.

Interest

30Since I have not found any benefit to be payable, no interest is payable.

Special Award

31If an applicant is able to establish that the respondent acted unreasonably in withholding or delaying payment of a benefit, then the Tribunal may order the respondent to pay an award of up to 50% of the benefit that was unreasonably withheld or delayed, along with interest.¹⁵

32Firstly, the applicant submits that the respondent was unreasonable in failing to provide the applicant's treatment notes to its s.44 assessor. The respondent submits that it did not have the applicant's treatment notes at the time of the s.44 assessment. According to the respondent, the applicant did not serve his treatment notes until well after the date of the assessment and after the Tribunal application was commenced. The applicant does not dispute this submission.¹⁶

33In these circumstances, I do not find that the respondent was unreasonable in failing to provide records in hand to its s.44 assessor. There is no evidence before me that the respondent was in possession of key medical records and deliberately withheld such records from its assessor.

34Secondly, the applicant argues that the respondent failed to consider all of the evidence before it. The evidence in support of such an argument is lacking. There is no evidence before me that the respondent failed to turn its mind to the records and information before it.

35Thirdly, the applicant submits that the respondent acted unreasonably by not using a Mandarin interpreter with the applicant. The respondent was able to point to specific log notes and show that an interpreter was arranged. The applicant did not show any specific log notes to the contrary. The applicant has not met the burden of showing that the respondent was unreasonably withholding or delaying the benefit at issue in this sense.

36The applicant's other submissions on the award are boilerplate in nature. There is no evidence to support these submissions on a balance of probabilities.

37No award is payable under Regulation 664.

CONCLUSION

38The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 ("Schedule").
2. 2Order of Adjudicator Sharma, July 8, 2019.
3. 3R.R.O. 1990, Reg. 664: Automobile Insurance, under Insurance Act, R.S.O. 1990, c.I.8.
4. 4Applicant's Submissions, Tab 1: Note of Dr. Counti, July 12, 2016.
5. 5Schedule, s.3(1) and 18(1).
6. 6Schedule, s.18(2).
7. 7August 11, 2016.
8. 8September 27, 2016.
9. 9Applicant's Submissions, Tab 1: p. 44 of the PDF.
10. 10Schedule, s.14. See also the definition of an accident at s. 3(1) of the Schedule.
11. 11August 11, 2016.
12. 12Applicant's Submissions, Tab 2A: Records of the family doctor dated November 11, 2016, p.9 of the PDF.
13. 13The respondent submitted a s.44 assessment by Dr. Ko which opines that the applicant's injuries are minor. My analysis is focused on the applicant's evidence as it is the applicant's burden to establish that his injuries are note minor.
14. 14Applicant's Submissions, Tab 1: OCF-18 of Dr. Counti dated September 27, 2016, at p.36.
15. 15Regulation 664, at s.10.
16. 16The applicant elected not to reply to the respondent's submissions containing this statement.