Zou v. Pembridge Insurance, 2021 CanLII 131156

Citation: Zou v. Pembridge Insurance, 2021 ONLAT 20-002292/AABS

Licence Appeal Tribunal File Number: 20-002292/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:

Chang Ren Zou

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Ian D. Kirby, Counsel

HEARD: In writing

BACKGROUND

1The applicant was involved in an automobile accident on December 18, 2017, and sought benefits from the respondent, Pembridge, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). The applicant was denied benefits by the respondent based on its determination that the Minor Injury Guideline (“MIG”) applied. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

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 a physiotherapy treatment plan in amount of $1,812.02 as recommended by Easy Health Centre in an OCF-18 dated May 8, 2018 and denied by the respondent on June 7, 2018?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG or that treatment is reasonable and necessary.

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. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that he suffers from chronic pain and psychological impairments as a result of the accident that justifies removal from and treatment beyond the MIG. He relies on the treatment records from Easy Health Centre, clinical notes from his family physician, Dr. Leung, and Pembridge’s s. 44 reports to demonstrate his complaints of lower back, neck and shoulder pain and reduced range of motion with his left shoulder. He submits he continues to have difficulty sitting and standing, has been unable to return to work as a renovator and that his pain has resulted in emotional distress affecting his function.

6The Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG. Here, however, the applicant has never been diagnosed with chronic pain syndrome and, other than two notations about the accident to Dr. Leung, has not demonstrated that he has ongoing pain that causes functional impairment, which is what he must prove in the absence of a diagnosis. The applicant only directed me to two accident-related notations. Dr. Leung’s notes and records are something of a labyrinth, but I was unable to identify a consistent pattern of accident-related pain complaints that would be suggestive of a chronic pain condition causing functional impairment as a result of the 2017 accident. Neither notation discusses back, neck or shoulder pain. The OCF-18 in dispute is not medical evidence.

7Similarly, the treatment notes from Easy Health that prompted the Disability Certificate also clearly support minor physical injuries under s. 3(1), as the applicant’s impairments are identified as sprain and strain of lumbar spine, elbow, fingers, cervical spine and headaches. Diagnostic imaging conducted December 22, 2017 revealed normal findings. The listing of anxiety disorder and sleep terrors in the OCF-3 are beyond the scope of physiotherapist Dr. Yang’s practice and, in any event, are not supported by the medical evidence or the applicant’s submissions, which provide no particulars.

8Meanwhile, the s. 44 report and follow-up report of Dr. Theodoropoulos found that the applicant sustained soft tissue injuries that did not affect his daily function or pre-accident employment and that no formal facility-based rehabilitation was required. Further, the applicant has not engaged with any of the six criteria from the AMA Guides for assessing chronic pain claims that the Tribunal has adopted as an interpretive tool. There is no discussion of the severity of his pain or how it causes functional impairment. The applicant has fallen well-short of meeting his burden and I see no reason to interfere with Pembridge’s determination that his accident-related injuries fall within the MIG.

Is the treatment reasonable and necessary?

9I note that in the applicant’s submissions on the OCF-18, three different treatment plans from a different facility are referenced in a sub-heading, however, the Order only references a single OCF-18. In any event, having determined that the applicant has not demonstrated that removal from the MIG is required, it is my understanding that the limits of the MIG have been exhausted. Accordingly, the applicant is not entitled to payment for the physiotherapy treatment in dispute and an analysis of whether it is reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable.

CONCLUSION

10The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG or that the treatment plan is reasonable and necessary.