Release date: 04/14/2021
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 Mei Xie
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Xiao Mei Xie, Applicant
Yu Jiang, Paralegal
For the Respondent:
Michael Unea, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Xiao Mei Xie, was injured in an accident on November 30, 2017, and sought various benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Allstate denied the benefits in dispute on the basis of its determination that Xiao Mei Xie’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). Xiao Mei Xie disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2I am asked to decide the following issues:
a) Are Xiao Mei Xie’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 Xiao Mei Xie entitled to $39.26 for physiotherapy, recommended by Easy Health Care in a treatment plan (OCF-18) dated March 7, 2018?
c) Is Xiao Mei Xie entitled to $2,200 for a psychological assessment, recommended by Somatic Assessment & Treatment Clinic in an OCF-18 dated December 30, 2019?
d) Is Allstate liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to Xiao Mei Xie?
e) Is Xiao Mei Xie entitled to interest on any overdue payment of benefits?
RESULT
3Xiao Mei Xie has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limit has been exhausted, she is not entitled to the disputed OCF-18s, interest, or an award.
DISCUSSION
Section 33 – duty to provide information
4Upon review of the evidence, there are a number of factors that undermine Xiao Mei Xie’s case and result in my finding that she is not entitled to any of the disputed OCF-18s.
5Section 33 of the Schedule states that an applicant shall, within 10 business days, provide the insurer with any information reasonably required to assist the insurer in determining entitlement to a benefit. Allstate’s position is that Xiao Mei Xie has failed to comply with its s. 33 requests, therefore, pursuant to s. 33(6), the insurer is not liable to pay a benefit in respect of any period which the insured fails to comply.
6Allstate posits that it advised Xiao Mei Xie on several occasions of her non-compliance with its s. 33 requests:
a) In an Explanation of Benefits (“EOB”) dated January 7, 2020, it advised that Xiao Mei Xie was in non-compliance as she had not yet provided any medical records in order to be able to assess the claim;
b) An EOB dated May 8, 2020 again advising of non-compliance;
c) Another EOB dated June 1, 2020 reminding Xiao Mei Xie of her non-compliance and requesting medical evidence in order to address the OCF-18 for a psychological assessment. Specifically, Allstate requested the OHIP Summary, the records of Humber River Hospital, the family physician and the treating facility records;
d) An EOB dated July 2, 2020, reminding Xiao Mei Xie that none of the requested documentation has been received and made a repeat request for the medical documentation; and
e) In a last EOB, dated August 5, 2020, Allstate again reminded Xiao Mei Xie of her non-compliance, that the medical documentation is missing, and that Allstate is unable to consider any of the disputed OCF-18s.
7Xiao Mei Xie has not directed me to any evidence that she has complied with any of the s. 33 requests, or provided proof that she has requested the medical records, nor has she provided a reason for her failure to comply with the time limits, pursuant to s. 34. I agree with Allstate that the records requested are directly relevant and are necessary to assist both Allstate and the Tribunal in the determination of whether Xiao Mei Xie is entitled to the benefits she seeks. As such, her non-compliance has triggered the s. 34 (6) provision, and Allstate is not liable to pay any of the benefits in dispute.
Did Xiao Mei Xie suffer physical injuries that would remove her from the MIG?
8Xiao Mei Xie claims she continues to experience pain from her accident-related injuries to the point that she now has chronic pain. Due to Xiao Mei Xie’s failure to provide the requested documentation, there is no medical evidence of ongoing pain complaints. Further, there is no evidence of any diagnosis relating to chronic pain in the medical evidence that is available. In fact, there are no medical records that comment on her accident-related condition, or any improvements as a result of treatment.
9In a psychological report obtained on her behalf, Xiao Mei Xie stated to Dr. Pojhan that she returned to her regular duties and hours at work one-week post-accident. She has also returned to her pre-accident housekeeping and self-care tasks. Xiao Mei Xie also indicated that she did not rely on any medication post-accident. Fatal to her claim, at page four of Dr. Pojhan’s report, it is noted that, “she confirmed that she would not like to receive additional treatments.”
10On the evidence, Xiao Mei Xie has failed to establish that her physical injuries as a result of the accident require treatment beyond the MIG limit. In addition, the lack of evidence of functional impairment is not indicative that she suffers from chronic pain. In order to be removed from the MIG for chronic pain, an insured must demonstrate that they have accident-related chronic pain with functional impairment. Xiao Mei Xie did not identify any functional impairments, did not provide a diagnosis and did not engage with the American Medical Association Guides’ criteria. Consequently, I find that her injuries are consistent with those that are considered predominantly minor.
Did Xiao Mei Xie suffer psychological impairments that would remove her from the MIG?
11As noted above, Xiao Mei Xie retained Dr. Pojhan for the purposes of a psychological assessment. Dr. Pojhan did not have any clinical records to review prior to his assessment. Dr. Pojhan assessed Xiao Mei Xie and the test results indicated depressed mood, difficulty sleeping, lack of energy, anxiety, and lost interest in pre-accident activities. Dr. Pojhan diagnosed her with an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
12Allstate submits that even with a diagnosis of an Adjustment Disorder, this does not guarantee removal from the MIG. Allstate relies on the adjudicator’s findings in 17-002948 v. Wawanesa Mutual Insurance Company.2 At paragraph 33, the adjudicator states that “the applicant bears the onus of proving on a balance of probabilities that he/she suffers from a psychological impairment that is not predominantly minor”. Although I am not bound by this decision, I find it persuasive and agree with the adjudicator. A diagnosis of a psychological condition is not enough to take one out of the MIG if there is no supporting objective medical evidence. Dr. Pojhan makes no comment on the MIG in his report, and similar to paragraph 30 in 17-002948, the expert report was of no assistance given that it was silent on the MIG.
13I agree with Allstate that there is a complete absence of corroborating evidence of psychological complaints due to the lack of medical evidence provided. As such, Xiao Mei Xie has failed to persuade me that she suffered a psychological impairment that requires treatment beyond the MIG limit.
14Without contemporaneous medical evidence to support continuing treatment, whether from a family doctor or objective medical professional, it is difficult for me to find that Xiao Mei Xie has satisfied her burden to show that she suffered injuries or impairments as a result of the accident that are not predominantly minor.
Are the treatment plans reasonable and necessary?
15Having determined that Xiao Mei Xie has not demonstrated that she suffered injuries that warrant removal from the MIG, an analysis of whether the OCF-18s are reasonable and necessary is not required, as the MIG limits have been exhausted and Xiao Mei Xie is in non-compliance, pursuant to s. 33. As no benefits are overdue, it follows that no interest is payable under s. 51.
AWARD
16Although Xiao Mei Xie claims an award, she offered no submissions on the issue. As there are no benefits payable, an award is not appropriate.
ORDER
17Xiao Mei Xie has not satisfied her burden to demonstrate that she requires treatment beyond the MIG. She is not entitled to any of the disputed OCF-18s, interest or an award. The application is dismissed.
Released: April 14, 2021
Derek Grant, Adjudicator
Footnotes
- O. Reg. 34/10
- 17-002948 v. Wawanesa Mutual Insurance Company, 2018 CanLII 76442