Release date: 04/01/2021
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:
Xiu Lan Yu
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
Maria Makarova, Paralegal
For the Respondent:
Michael McChesney, Counsel
HEARD:
By way of written submissions
OVERVIEW
[ 1 ] The applicant, Xiu Lan Yu (“Ms. Yu”), was injured in an automobile accident on June 18, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 from Aviva General Insurance (“Aviva”), the respondent.
[ 2 ] Aviva denied Ms. Yu’s claims for assistive devices, a psychological assessment, an orthopaedic assessment and for various treatment modalities because it had determined that all of Ms. Yu’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).2 As a result, Ms. Yu submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
[ 3 ] A case conference was held on July 6, 2020 and the matter proceeded to a written hearing.
ISSUES IN DISPUTE
[ 4 ] The following issues are to be decided:
(i) Are Ms. Yu’s injuries predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to treatment within the $3,500.00 MIG limit?
(ii) Is Ms. Yu entitled to $985.00 for various assistive devices recommended by Pro Care Health Centre in a treatment plan (“OCF-18”) submitted on June 4, 2018, and denied on June 14, 2018?
(iii) Is Ms. Yu entitled to $2,144.94 for a psychological assessment recommended by Pro Care Health Centre in an OCF-18 submitted on July 3, 2018, and denied on July 9, 2018?
(iv) Is Ms. Yu entitled to $1,630.84 for psychological treatment recommended by Pro Care Health Centre in an OCF-18 submitted on August 17, 2018, and denied on August 20, 2018?
(v) Is Ms. Yu entitled to $2,200.00 for an orthopaedic assessment recommended by Ajax Rehabilitation Centre in an OCF-18 submitted on October 4, 2018, and denied on October 16, 2018?
(vi) Is Ms. Yu entitled to $1,771.00 for chiropractic services and assistive devices recommended by MultiCare Rehab & Wellness Centre in an OCF-18 submitted on January 8, 2018, and denied on August 30, 2018?
(vii) Is Aviva liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to Ms. Yu?
(viii) Is Ms. Yu entitled to interest on any overdue payment of benefits?
RESULT
[ 5 ] I find that Ms. Yu has not met her onus of proving that her accident-related impairments warrant removal from the MIG on the basis of a psychological impairment or as a result of her diagnoses of bilateral psoas bursitis or impingement. Ms. Yu is also not entitled to any of the disputed OCF-18s or an award, and interest is not payable.
ANALYSIS
The Minor Injury Guideline (“MIG”)
[ 6 ] The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
[ 7 ] Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they provide evidence that they sustained a psychological impairment as a result of the accident. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 MIG limit on a balance of probabilities.3
[ 8 ] For the reasons that follow, I find that Ms. Yu has not met her onus of proving that her accident-related impairments warrant removal from the MIG.
Psychological Impairment
[ 9 ] Ms. Yu first submitted that her injuries are not predominantly minor and that she requires treatment beyond the MIG because she developed a psychological impairment as a result of the accident. Aviva disagrees and maintains that there is no compelling evidence that Ms. Yu suffered any psychological symptoms post-accident.
10Ms. Yu relied upon an August 9, 2018 Psychological Assessment Report4 to support her position that she sustained a psychological impairment from the accident. In this report, Ms. Yu is diagnosed with a specific phobia (driver and passenger related).5
11In contrast, Aviva relied upon the August 27, 2018 Insurer’s Examination (“IE”) Psychological Assessment Report by Dr. Terra Seon, psychologist,6 wherein Dr. Seon opined that Ms. Yu’s presentation was not of the magnitude to warrant a psychological diagnosis as a result of the accident.7
12The conclusions of August 9, 2018 report and Dr. Seon’s report are contradictory. However, after analyzing all of the evidence before me, I place greater weight on Dr. Seon’s report and opinion for the following reasons:
(i) Dr. Seon’s failure to diagnose Ms. Yu with a psychological condition as a result of the accident is more consistent with other evidence before me. For example, Ms. Yu only made one psychologically related complaint after the accident to her family doctor, Dr. Chi Cheong Terry Poon, on August 1, 2017. In Dr. Poon’s August 1, 2017 clinical note and record (“CNR”) entry, Dr. Poon noted that Ms. Yu had “some anxiety” but no depression, that Ms. Yu was able to manage at that time and that she declined any medication. Further, Ms. Yu specifically denied experiencing any depression or anxiety to Dr. Poon on January 16, 2018 as reflected in his CNR entry of the same date;
(ii) Dr. Seon’s opinion is also consistent with Ms. Yu’s failure to report any psychological conditions on the MultiCare Rehab & Wellness Centre’s accident detail page dated June 27, 2017.8 The comments section under the title and accompanying questions of, “Psychological (Did you have any anxiety/nervous[sic]/flashbacks/and nightmares?” identified no psychological complaints as it was left blank;
(iii) Ms. Yu was directly assessed by Dr. Seon, a psychologist, whereas the August 9, 2018 report noted that Ms. Yu was assessed by Ms. Zabrina Mok, registered psychotherapist, who was “supervised” by Dr. Nicole Dent, psychologist.9 No details were provided on what Dr. Dent’s supervision entailed. However, if Ms. Yu only met with Ms. Mok for the assessment and not Dr. Dent, I am unclear as to how the diagnosis of specific phobia (driver and passenger related) was made given that the report stated it was based on a clinical interview, the administration of psychological tests and the provision of feedback. Ms. Mok, the interviewer, cannot make a diagnosis as a registered psychotherapist;
(iv) In the August 9, 2018, Ms. Yu reported experiencing a moderate degree of driving anxiety and a mild degree of passenger anxiety. Further, the August 9, 2018 report noted that Ms. Yu’s psychological test scores on the Patient Pain Profile showed that she was within the average range on both the depression and anxiety scales, and was below the average range on the somatization scale.10 Ms. Yu’s score on the Beck Depression Inventory II also fell within the mild depressive range and on the Beck Anxiety Inventory fell within the range of a minimal level of anxiety. Despite these scores and Ms. Yu’s reported experiences, the report, in complete contrast, provides the following rationale for the diagnosis of specific phobia:
Ms. Yu meets the criteria for specific phobia as she reports significant anxiety related to being a driver and a passenger. Ms. Yu experiences a marked and persistent fear that is excessive or unreasonable associated with being a driver and a passenger of a vehicle. Ms. Yu's anxiety is out of proportion to the actual danger of being a driver and a passenger in a vehicle. The symptoms cause clinically significant distress and impairment, [sic] and are not better explained by another mental disorder (my emphasis added).11
The August 9, 2018 report provides no discussion or analysis as to the diagnosis of specific phobia of “significant anxiety,” “marked and persistent fear” and “significant distress” when Ms. Yu’s reported experiences and psychological test scores were moderate, below average and within average ranges;
(v) I do not agree with Ms. Yu’s submission that greater weight should be given to the August 9, 2018 report over Dr. Seon’s report because, “Dr. Dent conducted reliable, comprehensive and widely accepted psychometric testing that included validity testing,”12 whereas the tests conducted by Dr. Seon were focused on pain, the validity of results and how a patient’s emotional state affects their recovery. I do not agree that Dr. Dent conducted any psychological testing of Ms. Yu as the August 9, 2018 report clearly stated that Ms. Yu was assessed by Ms. Mok as I discussed above; and
(vi) Dr. Seon reviewed a number of additional documents as part of his assessment of Ms. Yu, including Dr. Poon’s CNRs, whereas the August 9, 2018 report lists no documents as being reviewed.
13For all of the reasons set out above, I place greater weight on Dr. Seon’s report and opinion that Ms. Yu’s presentation was not of the magnitude to warrant a psychological diagnosis. As a result, I find that Ms. Yu has not met her burden of proving that she sustained a psychological impairment as a result of the accident and, therefore, she is not entitled to treatment beyond the MIG on this basis.
Bilateral Psoas Bursitis and Impingement
14Ms. Yu also submitted that her diagnoses of bilateral psoas bursitis and impingement by Dr. Anna Czok, physiatrist, is not listed in the definition of a “minor injury” in the Schedule and, therefore, her injuries fall outside of the MIG.
15Dr. Czok diagnosed Ms. Yu with, among other conditions, bilateral psoas bursitis and acetabular impingement in the August 27, 2018 IE Physiatry Report.13 Ms. Yu, however, has mischaracterized this evidence as Dr. Czok’s report clearly stated, “the differential diagnosis for the hips, bilateral psoas bursitis, rectus femoris tendonitis and acetabular impingement, are not considered to be a result of the accident (my emphasis added).”14 Further, Dr. Czok opined that Ms. Yu’s accident-related physical injuries were considered soft tissue and minor as defined by the Schedule.15
16As Ms. Yu has failed to direct me to any other evidence to support a finding that her condition of bilateral psoas bursitis or impingement was caused by the accident, I find that she is also not entitled to treatment beyond the MIG on this basis.
The Disputed Treatment Plans
17I find that Ms. Yu is not entitled to any of the disputed OCF-18s for the following reasons:
(i) As of February 28, 2018, the amount of medical and rehabilitation benefits paid by Aviva to Ms. Yu was $3,480.0016 out of the $3,500.00 available under the MIG. The remaining $20.00 in the MIG limits is not enough to fund any of the proposed assistive devices, treatment sessions or assessments sought in the OCF-18s; and
(ii) as indicated on page 2 on all of the treatment plans, all of the disputed OCF-18s propose treatment outside the MIG framework which I have determined Ms. Yu is not entitled to.
Award
18Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
19As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.
Interest
20As there are no benefits owing, no interest is payable.
CONCLUSION
21For all of the reasons outlined above, I find that:
(i) Ms. Yu has not met her onus of proving that her accident-related impairments warrant removal from the MIG;
(ii) Ms. Yu is not entitled to the disputed treatment plans;
(iii) Ms. Yu is not entitled to an award under O. Reg. 664;
(iv) No interest is payable; and
(v) This application is dismissed.
Date of Issue: April 1, 2021
________________________
Lindsay Lake, Adjudicator
Footnotes
- O. Reg. 34/10 (the “Schedule”).
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
- Applicant’s Document Brief, tab 10.
- Ibid. at page 7.
- Written Submissions of the Respondent, tab D.
- Ibid. at page 9.
- Applicant’s Document Brief, tab 9.
- Supra note 4 at page 1.
- Ibid. at page 6.
- Ibid. at page 7.
- Submissions of the Applicant, pages 5-6.
- Written Submissions of the Respondent, tab E.
- Ibid. at page 8.
- Ibid.
- Applicant’s Document Brief, tab 10.```