Licence Appeal Tribunal File Number: 20-002389/AABS
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:
Hyunsook Jeong
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
Hyunsook Jeong, Applicant
Julia Zhiyuan Hou, Counsel
For the Respondent:
Nabila Majidzadeh, Counsel
Heard by Videoconference:
July 8 and 9, 2021
BACKGROUND
1The applicant seeks a determination that she did not sustain predominantly minor injuries as a result of the motor vehicle accident (“MVA”), and that she is entitled to an income replacement benefit (“IRB”) and an award claim.
2The applicant was injured in a MVA on March 30, 2019. She applied for and received benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) up to the $3,500.00 cap placed on predominately minor injuries. The applicant then submitted additional treatment plans which the respondent denied as it took the position that the applicant’s injuries were predominantly minor in nature, and as a result, no further medical and rehabilitation benefits were payable. The respondent’s position was based on the strength of an insurer’s s.44 report which also concluded that the applicant did not suffer from a substantial inability to complete the essential tasks of her pre-accident employment. As a result, the respondent also denied the applicant’s request for an IRB.
3The applicant disagreed with the respondent’s decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for dispute resolution. The applicant takes the position that she should be removed from the Minor Injury Guideline (“MIG”) due to her chronic pain, chronic pain syndrome and her “frozen shoulder”. The applicant also takes the position that her ongoing pain and “frozen shoulder” have resulted in physical limitations which cause her to suffer from a substantial inability to complete the essential tasks of her pre-accident employment, and moreover, from being able to engage in any employment for which she is reasonably suited for by education, training and/or experience. The applicant submits that the respondent has unreasonably withheld her IRB and as a result, is entitled to an award claim. The parties could not resolve the issues in dispute, so the matter proceeded to a hearing.
ISSUES IN DISPUTE
4At the hearing the parties confirmed that the issues in dispute are as follows:
I. Did the applicant sustain predominantly minor injuries as defined by the Schedule?
II. Is the applicant entitled to an income replacement benefit in the amount of $234.58 per week from August 20, 2019 to July 24, 2020 and from August 19, 2020 to date and ongoing?
III. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
IV. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5Based on the evidence before me, I find that the applicant did sustain predominantly minor injuries as defined by the Schedule and, that she is not entitled to an IRB as claimed. As a result, she is not entitled to interest or an award claim.
ANALYSIS
The Minor Injury Guideline
6The MIG establishes a treatment framework available to injured persons who sustain a “minor injury” as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.
7The applicant bears the onus of establishing on a balance of probabilities that his injuries fall outside of the MIG. The applicant submits that she ought to be removed from the MIG on the basis of her chronic pain, chronic pain syndrome and her “frozen shoulder”.
Predominantly Minor Injuries
8On March 30, 2019, the applicant was the rear passenger of a vehicle when the driver hit a cement pole. The applicant attended North York General Hospital immediately after the MVA. She indicated that she hit her head on the back of the seat, complained of left shoulder pain, dizziness and pain to the top of her head that radiated down to the right side of her neck. She was diagnosed with “minor injuries” and was discharged home.1
9At this time, the applicant did not have a family doctor in Canada as she had just recently arrived on a work visa. On April 5, 2019, she began to see Dr. Doo Young Kim. Dr. Kim’s clinical notes and records from that visit indicate that the applicant reported that she had headaches and complained of pain in her neck, lower back and in her left knee and hand. She indicated that she could sleep well, had no nightmares and denied PTSD syndrome. Dr. Kim noted that the applicant looked generally well and was otherwise healthy. The applicant demonstrated full range of motion in her neck and had normal sensations and strength of her upper and lower extremities. Dr. Kim ordered some x-rays with respect to the applicant’s spine, left shoulder, knee and hand and prescribed some pain medications. Dr. Kim did not recommend any physical treatment.
10The x-rays of the applicant’s cervical spine left shoulder, third finger and left knee were unremarkable. The ultrasound of the applicant’s left shoulder showed some calcification in the supraspinatus tendon. Dr. Kim’s clinical note and record dated April 12, 2019 indicate that the “x-ray and ultrasound look not significant”.
11The applicant next saw Dr. Kim on July 16, 2019. The applicant complained of back pain radiating to her left pelvic area and pain in her neck, left shoulder and back. Dr. Kim noted that the applicant’s shoulder and back pain was worse with movement. Dr. Kim also noted that the applicant has “been doing well since mva” and “now has back pain which she did not have right after mva.” Upon examination, there was reduced range of motion of her neck and back.
12The applicant’s next visit to Dr. Kim was on October 1, 2019, wherein the applicant told Dr. Kim of her ongoing left shoulder pain. Dr, Kim noted “full ROM of neck” and did not recommend any physical treatment. Dr. Kim also noted that the applicant stopped working since mid-August due to pain and that she was using medication for that pain.
13On October 28, 2019, the applicant saw Dr. Kim who requisitioned an MRI and made a referral to an orthopaedic surgeon. No other accident-related complaints were made. The MRI was taken on March 15, 2020. The MRI of the applicant’s left shoulder revealed supraspinatus and subscapularis tendinosis without underlying tear, and mild degenerative findings in the glenohumeral joint. The MRI of the applicant’s cervical spine showed mild multilevel degenerative changes.
14The applicant saw Dr. Oleg Safir, orthopaedic surgeon on August 24, 2020. She complained of pain in her neck which radiated to her left shoulder and left arm. Dr. Safir’s physical examination noted tenderness over the anterior aspect of her left shoulder, left trapezius and left side of the neck. Dr. Safir also noted a moderately restricted range of motion of her neck, and significant restriction in the range of motion of her left shoulder. Dr. Safir noted “suspicious to a frozen shoulder” in relation to the applicant’s left shoulder but did not offer a diagnosis. Dr. Safir recommended physiotherapy and cortisone injections.
15The applicant got a new family doctor, Dr. Joo, in January 2021. She visited Dr. Joo on January 15, 2021, complaining of left shoulder pain radiating down to her hand. The physical examination revealed a reduced range of motion in her left shoulder. Dr. Joo did not make any recommendation for physical treatment.
16The Applicant testified that she received physical treatment, such as acupuncture and massage from a clinic, however the applicant has not provided any evidence of her attendance at the clinic. The applicant also indicated that she received her first cortisone shot on July 5, 2021.
17Based on the evidence before me, I find that the applicant’s injuries fall within the confines of the MIG. None of the applicant’s treating health practitioners have diagnosed the applicant with chronic pain or chronic pain syndrome. In addition to this, aside from the first Disability Certificates (“OCF-3”) submitted by the applicant, none of the applicant’s health care providers provided a diagnosis that falls outside the confines of the MIG, and the applicant has also not provided any expert reports commenting on this issue. I also note that all the x-rays, ultrasounds and MRI’s have been unremarkable.
18With respect to the two OCF-3’s submitted by the applicant; I note the following. The first OCF-3 dated April 13, 2019 was completed by Dr. Elana, chiropractor. Dr. Elana diagnosed the applicant with a sprain and strain of the cervical and lumbar spine, headaches, radiculopathy, muscle strain, and a sprain and strain of the shoulder joint. The anticipated duration of the applicant’s disabilities was noted to be between 9 and 12 weeks. In some cases, a diagnosis of radiculopathy may remove the applicant from the confines of the MIG. In this case, the applicant did not make that submission and the totality of the evidence does not support such a finding.
19The second OCF-3 dated September 10, 2019 was completed by Dr. Kim and confirmed that the applicant suffered from predominately minor injuries. Dr. Kim diagnosed the applicant with whiplash associated disorder (WAD 2), sprain and strain of the joints and ligaments of the shoulder, lumbar spine and pelvis and calcific tendonitis of the shoulder and rotator cuff syndrome. The anticipated duration of the applicant’s disabilities was not noted.
20I am also not persuaded by the applicant’s submission that she suffers from a “frozen shoulder” which should remove her from the confines of the MIG. Dr. Safir did not diagnose the applicant with a “frozen shoulder” but was merely “suspicious to a frozen shoulder.” This does not satisfy me on a balance of probabilities that the applicant does in fact suffer from a “frozen shoulder”.
21The applicant then submits that when you take Dr. Safir’s suspicion together with the applicant’s reduced range of motion and consistent pain in her neck and shoulder as well as the results of the MRI of the applicant’s left shoulder, it leads to the conclusion that the applicant sustained a frozen shoulder. I do not find this to be a persuasive argument as the applicant has failed to lead any medical evidence that would allow me to draw this conclusion in this way. The applicant has simply failed to meet her onus in this regard.
22I am also persuaded by Dr. Mula’s opinion that the applicant’s injuries fall within the confines of the MIG given that this opinion is unchallenged. Dr. Mula conducted a section 44 Musculoskeletal Examination on behalf of the respondent on October 28, 2019. Dr. Mula diagnosed the applicant with a myofascial strain of the cervical spine, left shoulder, finger and left knee and tension headaches. Dr. Mula prepared an addendum report dated April 14, 2021, after receiving additional medical documentation. Dr. Mula’s diagnosis and opinion that the applicant’s injuries fall within the confines of the MIG did not change from one report to the other.
23As a result, I find that the applicant has failed to establish that her accident-related injuries are anything more than clinically associated sequalae and that she sustained a minor injury as defined by the Schedule.
Income Replacement Benefit
24Entitlement to an IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)(1)(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his/her employment or self-employment. Section 6(2) provides that the benefit is only payable after 104 weeks of disability if, as a result of the accident, the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.
25The applicant bears the onus of establishing on a balance of probabilities, that she is entitled to the IRB as claimed.
Entitlement During the First 104 weeks
26Prior to the MVA, the applicant was employed in various positions at different restaurants. She described her jobs as being physically demanding with constant lifting, standing, carrying and reaching. She also explained that she was required to constantly use her upper body while cutting, chopping and frying. The applicant explained that she was about to begin a new job at Sima Sushi on April 1, 2019, however, due to the MVA, she was not able to begin her employment there until May 8, 2019.
27The applicant testified that her employment tasks at Sima Sushi included: carrying and lifting heavy containers including 10 kg powder containers, 24 kg rice bags and 18L oil containers up and down two floors; filling 30L containers of water to make miso soup; kneeling to cut and chop radish, carrots, beets and over 500 yams daily; and frying tempura.
28The applicant submits that the injuries to her neck, shoulder and back caused her to suffer from a substantial inability to complete the essential tasks of her pre-accident employment. She described having difficulty carrying and lifting heavy items from the first to second floor as it caused pain to her neck, back and left shoulder. The applicant also testified that when frying shrimp, she had to lower her head down to check on the frying status which caused pain to her neck and shoulder. In addition, she would have to use her left hand specifically to lift the fry basket when the tempura was done which she found difficult due to her pain.
29Furthermore, the applicant explained that because the kitchen she worked in was so small, she had to kneel down on the floor in order to cut the vegetables. She would hold the vegetable in her left hand while chopping with her right hand. She explained that this put tension on her left shoulder, causing her pain in her neck and left shoulder.
30I also note that the applicant did not submit any reports that concluded that she met the “pre 104 test” and I have not been directed to any of the submitted clinical notes and records which address this issue. The applicant also testified that she did not tell Dr. Kim, Dr. Joo or Dr. Safir that she suffered from a substantial inability to perform the essential tasks of her pre-accident employment. I also note that neither Dr. Kim, Dr. Joo or Dr. Safir told the applicant not to work.
31I acknowledge the applicant’s testimony with respect to the pain she experiences when lifting, standing, carrying, reaching and completing the other tasks of her employment. However, the applicant’s self-reports of pain, when taken into context with the rest of the objective evidence before me, is not sufficient enough to persuade me on a balance of probabilities that she suffers from a substantial inability to perform the essential tasks of her pre-accident employment. The reports of Dr. Mula, which concluded that the applicant has not met the “pre 104 test” further confirm my finding that the applicant is not entitled to a pre 104 IRB.
32The only evidence submitted by the applicant that suggests that she meets the “pre 104 test”, are the OCF-3’s completed by Dr. Elana and Dr. Kim. Dr. Elana indicated that the applicant’s limitations were anticipated to persist for 9 to 12 weeks. Dr. Kim did not comment on the anticipated duration of the applicant’s limitations. Nothing in the evidence before me has satisfied me that the applicant’s limitations persisted beyond this point.
33In this case I find that the applicant has not satisfied me, on a balance of probabilities, that she suffers from a substantial inability to perform the essential tasks of her pre-accident employment. The objective evidence before me suggests that the applicant suffered from uncomplicated soft tissue injuries. The resulting impairments appear to be minimal and do not interfere with the applicant’s ability to perform the essential tasks of his pre-accident employment.
34Since I have found that the applicant is not entitled to a pre 104 IRB, it is not necessary to do a post 104 IRB analysis. The applicant is also not entitled to interest or an award since I have found that no benefit is owing.
CONCLUSION
35For the reasons outlined above, I find that the applicant has sustain predominantly minor injuries as defined by the Schedule. The applicant is also not entitled to an IRB. As a result, the applicant is not entitled to interest or an award claim.
Released: November 5, 2021
Paul Gosio, Adjudicator