Xiao Tong Chen v. Co-Operators General Insurance Company, 2021 CanLII 104636

Citation: Chen v. Co-Operators Gen. Ins. Co., 2021 ONLAT 20-002216/AABS

Release date: 10/21/2021

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:

Xiao Tong Chen

Applicant

and

Co-Operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant sustained physical and psychological impairments in an accident on February 27, 2019 and sought benefits from the respondent, 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:

a. 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 MIG?

b. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Somatic Assessments and Treatment Clinic in a treatment plan denied September 10, 2019?

c. Is the applicant entitled to $3,981.88 for psychological counselling, recommended by Somatic Assessments and Treatment Clinic in a treatment plan (OCF-18) denied December 22, 2019?

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

RESULT

3The applicant has not demonstrated that her accident-related impairments warrant removal from and treatment beyond the MIG. As the MIG limits have been exhausted, the treatment and assessment plans are not reasonable and necessary, and no interest is payable.

ANALYSIS

Applicability of the MIG

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.” 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 condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that as a result of the accident she suffers from right shoulder pain, neck pain and poor sleep that has resulted in chronic pain. Further, she primarily contends that her psychological impairments, identified as depression, anxiety and fear and which led to a diagnosis by Dr. Cook of Major Depressive Disorder and Chronic Pain, warrants removal from the MIG. She relies on the report of Dr. Cook, various OCF documents, clinical notes from her psychiatrist Dr. Xiang, the treatment notes and a letter from Yonge Street Mission where she received counselling services and the emergency department records from Birchmount Hospital, where she was admitted for depression and suicidal thoughts and was diagnosed with situational crisis and adjustment disorder with depressed and anxious features.

6In response, Co-Operators asserts that the applicant sustained minor injuries as she was only diagnosed with WAD-11 and neck pain, and that she returned to work after the accident. It points to the July 15, 2019 MIG Discharge Report that stated that the applicant had returned to full function and was managing well on her own. Notably, with respect to the applicant’s burden to prove causation, Co-Operators submits that the applicant has reported involvement in “several” motor vehicle accidents, that the Birchmount Hospital records reference a hit and run that does not pertain to the subject accident and the applicant had reported to Dr. Xiang being involved in four other accidents. Further, Co-Operators submits that her psychological treatment pre-dates the accident, as there are reports of family abuse and an abusive relationship with her ex-boyfriend. It submits that treatment at Yonge Street Mission focused on non-accident stressors such as bulimia, sleep difficulties, being fired from her job and potential legal issues due to allegations of theft. Co-Operators relies on the s. 44 reports of Dr. Aldridge and Dr. Hines to support its determination that her accident-related impairments are treatable within the MIG.

7I agree with Co-Operators and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. I agree that her accident-related physical complaints all fall within the definition of minor injury under s. 3 and there is no objective imaging to suggest that she sustained a tear or fracture. While the OCF-3 in evidence states that she suffered a substantial inability to return to her employment, there is no dispute that the applicant returned to work following the accident. While I am also alive to her subjective reports of pain, Dr. Aldridge found that she had fluid range of motion, and diagnosed uncomplicated sprain/strain injuries that were treatable within the MIG, which is largely in line with the clinical notes of Dr. Chu and the Birchmount Hospital records. Indeed, the MIG Discharge Form in evidence reveals that she did not require any further treatment, undermining any claim that she requires treatment for physical injuries beyond the MIG. The applicant did not provide any submissions under s. 18(2) that she suffered from a pre-existing impairment that would prevent her recovery under the MIG.

8The Tribunal has determined that chronic pain syndrome or chronic pain with functional impairment may warrant removal from the MIG. Here, however, the applicant only points to her subjective complaints of pain and not a formal diagnosis. While a formal diagnosis of chronic pain syndrome is not required, the applicant must demonstrate functional impairment as a result of their pain and the applicant is correct that the Tribunal has relied on the six criteria under the AMA Guides as an interpretive tool for such claims. However, other than a passing reference to the Guides in her submissions, the applicant does not provide analysis to explain how she meets any of the criteria, let alone the required three, to justify removal from the MIG on the basis of chronic pain. While the applicant may have lingering shoulder and back pain, she has not demonstrated a dependence on medication, on treatment providers or family, or critically, functional impairment in her daily life to warrant removal on this ground.

9Finally, the Tribunal has determined that psychological impairments may warrant removal from the MIG, as psychological impairments are not captured by the definition of a minor injury under the Schedule. Here, there is no dispute that the applicant has struggled and perhaps continues to struggle with her mental health because of significant life stressors, namely past relationship abuse, the loss of her job and potential legal issues. There is also no dispute that the applicant has undergone and continues to receive counselling for her struggles.

10As Co-Operators argues, it is well-settled that in order to demonstrate that removal from the MIG on these grounds is warranted, the applicant must first demonstrate that, but for the accident, she would have not sustained her psychological impairments. Despite having the benefit of reply submissions, the applicant offered no insight or explanation to rebut Co-Operators’ assertions that a significant majority of her mental health struggles are unrelated to a motor vehicle accident. Perhaps more accurately, the applicant has not shown that her mental health struggles and need for counselling are related to the subject motor vehicle accident and not any of the several other purported accidents that she has been involved in and has reported to her various practitioners.

11With respect, the Tribunal would have benefitted from a more thorough explanation of how the applicant’s psychological impairments were caused by the accident at issue, being the accident that occurred on February 27, 2019. While the applicant has received considerable counselling for her fear, anxiety and depression, she has not demonstrated how these symptoms, and Dr. Cook’s diagnosis, are related to this specific accident and not as a result of the other referenced accidents, or the other significant stressors like abuse and trauma that are consistently referenced in the medical documentation and are highlighted by her providers at Yonge Street Mission. In this vein, and on review of the treatment records, I understand why Dr. Hines opined that the applicant “does not have any accident-related mental health impairments” because the medical evidence illuminates many other more prominent stressors. While it is encouraging that the applicant is receiving counselling, it is difficult on the evidence to accept that the counselling received to date and the need for any future counselling is as a result of psychological impairments sustained in the accident of February 27, 2019.

12On balance, and without greater elaboration from the applicant to meet her burden or speak to the causation issues raised by Co-Operators, I agree with Co-Operators that the applicant has not proven that, but for the accident. she would not have sustained her psychological impairments. In turn, I find no reason to interfere with its determination that as a result of the February 27, 2019 accident, the applicant sustained impairments that are treatable within the MIG.

Are the treatment plans reasonable and necessary?

13Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding that the MIG limits have been exhausted. Accordingly, an analysis of whether the assessment and treatment plan in dispute is reasonable and necessary as a result of the accident is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.

CONCLUSION

14The applicant has not demonstrated that her accident-related impairments warrant removal from and treatment beyond the MIG. As the MIG limits have been exhausted, the treatment and assessment plans are not reasonable and necessary, and no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.