Choi v. Economical Insurance Company, 2021 CanLII 30773

Citation: Choi v. Economical Insurance Company, 2021 ONLAT 20-003235/AABS

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:

Hwalsoo Choi

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Jae Cho, Counsel

For the Respondent: Gerry George, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, Hwalsoo Choi (“Mr. Choi”), was injured in an automobile accident on November 8, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Economical Insurance Company (“Economical”), the respondent.

2Economical denied Mr. Choi’s claims for physiotherapy services because it had determined that all of Mr. Choi’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, Mr. Choi submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on October 19, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Are Mr. Choi’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 answer to issue (i) is “no”, then:

(a) Is Mr. Choi entitled to physiotherapy services recommended by Care Plus Rehabilitation as follows:

1. $229.26 ($1,300.00 less $1,070.74 approved) in a treatment plan (“OCF-18”) dated February 12, 2018 and partially approved on March 6, 2018?

2. $1,655.30 in an OCF-18 dated July 14, 2018 and denied on August 3, 2018?

(b) Is Mr. Choi entitled to interest on any overdue payment of benefits?

RESULT

5I find that Mr. Choi has not met his onus of proving that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted,³ it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. Mr. Choi is not entitled to interest and the application is dismissed.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6The 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.

7Section 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 can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence that they sustained a psychological impairment or chronic pain as a result of the accident.

8I find that Mr. Choi has not met his burden⁴ of proving on a balance of probabilities that his accident-related impairments require treatment beyond the MIG based on a pre-existing condition, chronic pain and/or a psychological impairment.

Pre-existing Condition

9It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

10The only evidence filed by Mr. Choi for the hearing was one entry of clinical notes and records (“CNRs”) of Dr. George Botrous, Mr. Choi’s family physician, dated October 21, 2017. This entry stated, “req[est] massage therapy note for chronic back pain.”⁵

11While Dr. Botrous’ October 21, 2017 CNR entry noted chronic back pain, there is no evidence before me that Mr. Choi’s pre-existing chronic back pain would prevent maximal recovery under the MIG. Therefore, I find that Mr. Choi has failed to prove on a balance of probabilities that his injuries fall outside of the MIG as a result of a pre-existing condition.

Chronic Pain / Psychological Impairment

12Mr. Choi submitted that he sustained various physical and psychological injuries as a result of the accident including headaches, dizziness, symptoms and signs involving emotional state, whiplash associated disorder [WAD 2] with complaints of neck pain, sprain and strain of his shoulder joint, lumbar spine and ankle, subluxation complex (vertebral), acute stress reaction and sleep disorders.⁶ Mr. Choi’s submissions, however, are not evidence and the only evidence he filed for the hearing pre-dated the accident.

13In its submissions, Economical filed a November 11, 2017 Treatment Confirmation Form (“OCF-23”),⁷ a November 13, 2017 Disability Certificate (“OCF-3”)⁸ and the two disputed OCF-18s which all list several injuries. Despite not filing these documents as evidence for the hearing, Mr. Choi referenced and relied upon the diagnoses contained in these OCF forms in his submissions. It is well-settled, however, that OCF forms are not sufficient evidence on their own of diagnoses.

14Economical included a more fulsome version of Dr. Botrous’ CNRs in its submissions which show that Mr. Choi made no psychological complaints post-accident. Dr. Botrous did diagnose Mr. Choi with lateral epicondylitis on April 14, 2018 after Mr. Choi complained of elbow pain. Dr. Botrous’ April 14, 2018 CNR entry, however, did not mention the accident but did note that Mr. Choi was still playing golf. Therefore, even if Mr. Choi’s left elbow impairment was attributable to the accident, which I do not agree, there is no evidence before me that this condition impaired Mr. Choi’s function, which is required to be proven on a balance of probabilities for chronic pain to remove someone from the MIG.

15Moreover, Dr. Botrous’ CNRs show that Mr. Choi was involved in a second motor vehicle accident on or about January 23, 2019. As a result of this accident, Mr. Choi was diagnosed with mechanical back pain. This second accident, and the accompanying diagnosis, was not addressed by Mr. Choi as he filed no reply submissions for the hearing.

16Finally, Economical submitted a December 28, 2018 Insurer’s Examination (“IE”) report by Dr. Nancy Lynn Abram, family physician,⁹ in which Dr. Abram opined that Mr. Choi’s injuries of whiplash associated disorder (WAD I) and a lumbar strain were soft tissue in nature and were within the MIG.¹⁰ Dr. Abrams also found that Mr. Choi was not suffering from an impairment as a result of the accident at that time of her assessment and that he did not have any current limitations or restrictions.¹¹

17On the evidence before me, I find that Mr. Choi has failed to prove on a balance of probabilities that he sustained a psychological impairment or chronic pain such that his accident-related injuries fall outside of the MIG.

18As I have found that Mr. Choi has not met his onus of proving that his accident-related impairments warrant removal from the MIG, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans because the MIG limits have been exhausted.

Interest

19As there are no benefits owing, no interest is payable.

ORDER

20For the reasons outlined above, I find that Mr. Choi has not met his onus of proving that his accident-related impairments warrant removal from the MIG. Accordingly, it is not necessary for me to determine whether the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted. No interest is payable, and this application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Respondent’s Written Submissions, para. 24.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Applicant’s Written Submissions, tab 1.
6. 6Applicant’s Written Submission, pages 2-3.
7. 7Respondent’s Written Submissions, tab 3.
8. 8Respondent’s Written Submissions, tab 4.
9. 9Respondent’s Written Submissions, tab 1.
10. 10Ibid. at page 6.
11. 11Ibid. at pages 6-7.