Release date: 04/08/2021
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:
Chunbo Zhou
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Devika Maharaj, Paralegal
For the Respondent:
Kyle Duncan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1On November 18, 2017, while walking as a pedestrian, the applicant’s foot was driven over by a turning vehicle. As a result, he sought benefits from the respondent, The Personal, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The Personal denied the benefits based on a determination that he sustained predominantly minor injuries and was therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
i. 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 Minor Injury Guideline?
ii. If the applicant’s injuries are not considered to be predominantly minor:
a. Is the applicant entitled to the cost of an examination in the amount of $2,144.94 for a psychological assessment, recommended by Dr. Nicole Dent of Procare, as per OCF-18 dated May 9, 2018 and denied on June 16, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained predominantly minor injuries, subject to treatment within the MIG. The OCF-18 in dispute and interest are not 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.” The Tribunal has also determined that a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant has fallen well-short of meeting his burden of proof. The x-ray taken at North York General Hospital on November 19, 2017 revealed no fractures or malalignment and the sole injury identified by his family physician on November 22, 2017 was a contusion on the applicant’s “right big toe”. There are no accident-related complaints—physical or psychological—to either of the applicant’s family physicians in any of the subsequent clinical notes. In a similar vein, despite being ordered to provide his new family physician’s records by the Tribunal, the applicant failed to produce updated clinical notes and records for this hearing. In any event, I agree with The Personal that the OHIP Summary in evidence that covers the period June 23, 2018 to June 26, 2020 contains no entries that can be reasonably or contemporaneously attributed to the accident.
6In addition, I find Dr. Castiglione’s s. 44 report dated May 29, 2018, submitted by The Personal, confirms that the applicant’s accident-related impairments are properly within the MIG. After an examination and review of the applicant’s medical records, Dr. Castiglione found no objective signs of a physical accident-related impairment and that the applicant had reached maximal medical recovery. On the medical evidence provided by the applicant, I see no reason to disagree with Dr. Castiglione’s opinion.
7However, an applicant may also escape the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of a minor injury under s. 3(1). The applicant asserts that he sustained a psychological impairment from the accident based on a July 21, 2018 psychological assessment by Ms. Mok and Dr. Dent, where he was diagnosed with Specific Phobia - Situational Type (Driver and Pedestrian). In response, The Personal directs the Tribunal to the s. 44 psychological report of Dr. Derry dated May 29, 2018, who found that the applicant did not have any pre-existing psychological impairments and did not suffer a psychological injury as a result of the accident.
8I prefer the report of Dr. Derry and agree with The Personal that the applicant has not demonstrated that he sustained a psychological impairment as a result of the November 2017 accident that warrants removal from the MIG on this basis.
9Problematically, the applicant’s submissions do not elaborate on his psychological symptoms, do not explain how his alleged symptoms are affecting him and critically, do not identify the link between his psychological impairments and the accident and why they justify removal from the MIG. On review of the clinical notes and records in evidence, the applicant reported no accident-related psychological or emotional symptoms to either of his family physicians and the Tribunal was not directed to referrals for same, so it is unclear what the basis for the psychological assessment was or where the referral came from. Further, it does not appear that either of Ms. Mok or Dr. Dent reviewed the applicant’s medical file, which suggests that their diagnosis is based entirely off of the applicant’s self-reporting on the three tests administered.
10In contrast, Dr. Derry conducted a medical file review and an in-person assessment in arriving at his opinion, which I find is much more in line with the medical evidence. Indeed, while the applicant relies on the specific driving phobia diagnosis, there is no dispute that he has continued to drive at all times post-accident and it is unclear how the other complaints identified in the report—becoming easily upset, mood swings, a tense relationship with his step-daughter, worry over his family, future and finances, low energy, etc.—can be reasonably attributed to the subject accident. Indeed, the applicant reported to Dr. Derry that he did not have driving anxiety or phobic symptoms while driving, as a passenger or as a pedestrian. This self-reporting alone undermines the very diagnosis that the applicant’s submissions rely on for removal from the MIG.
11Accordingly, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG. Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the assessment is reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
12The applicant sustained predominantly minor injuries as a result of the accident, subject to treatment within the MIG. He is not entitled to payment for the treatment plan in dispute or interest.
Released: April 8, 2021
________________________
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.