Release date: 06/14/2021
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:
Shu Lan Chen
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Yu Jiang, Paralegal
For the Respondent:
Timothea T. Leung, Counsel
HEARD:
By way of written submissions
OVERVIEW
1She Lan Chen, “the Applicant”, was injured in an automobile accident on September 26, 2017 and sought benefits from the Respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2Allstate Canada, “the Respondent”, determined the Applicant’s injuries fell within the Minor Injury Guideline (MIG) and refused to pay for certain medical and non-earner benefits. As a result, the Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
3The disputed claims in this hearing are:
Are the Applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
Is the Applicant entitled to $2,200.00 for a psychological assessment, recommended by Somatic Assessments & Treatment Centre in a treatment plan dated June 4, 2019?
Is the Applicant entitled to $2,696.08 for physiotherapy, recommended by EZ Physio in a treatment plan dated February 2, 2018?
Is the Applicant entitled to a non-earner benefit of $185.00 per week from October 24, 2017 to date and ongoing?
Is the Respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find on the evidence that the Applicant’s injuries as a result of the accident are not predominantly minor injuries and are not subject to the $3,500.00 funding limit.
5The Applicant is entitled to the cost of the disputed psychological assessment plan, plus interest pursuant to section 51 of the Schedule.
6The Applicant is unsuccessful on all other issues.
BACKGROUND
7The Applicant was the driver of a vehicle which was struck from behind by a bus while making a turn at a suburban intersection. She was transported from the scene of the accident to the hospital and assessed. X-rays taken at the hospital revealed no fractures and the Applicant was diagnosed with whiplash and discharged. The following day she started treatment at EZ Physio, pursuant to the MIG.
8The Applicant claims to suffer from chronic pain and psychological injuries and submits that such injuries are not included in the MIG. As a result, she claims entitlement to medical benefits beyond the $3,500.00 funding limit for predominantly minor injuries. She also claims to suffer a complete inability to carry on a normal life and thus, claims entitlement to non-earner benefits (“NEBs”).
THE MINOR INJURY GUIDELINE
9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.
10If an insurer deems an Applicant’s injuries to be minor in nature, the responsibility is on the Applicant to establish that the MIG, and the related funding limit, should not apply.
11I find on the evidence that the Applicant sustained an Adjustment Disorder with Mixed Anxiety and features of Somatic Pain as a result of the accident. Thus, she is not bound by the MIG and the $3,500.00 funding limit on treatment.
Psychological Injuries
12The Applicant sought funding for a psychological assessment nearly two years following the accident. In response, the Respondent advised that there was no medical evidence to support the need for a psychological assessment and asked the Applicant to provide family physician records, an OHIP summary, hospital, and specialists’ records. It further advised that the request was made pursuant to section 33 of the Schedule and that failure to comply with the request “may result in suspension of your Medical and Rehabilitation Benefits.” The Applicant provided no family physician or specialist records, nor an OHIP summary and has yet to produce them to-date. Clinical notes and records (“CNRs”) from EZ Physio and the Hospital were eventually produced, in accordance with the deadlines imposed by the Tribunal Order dated August 27, 2020.
13The Applicant eventually incurred the psychological assessment, despite the denial of funding for it. The assessment was conducted by Dr. M. Pojhan, psychologist, on January 12, 2021, about one month prior to the disclosure deadline for this hearing. Despite including no review of the Applicant’s medical record and relying almost entirely on the Applicant’s self-reports, Dr. Pojhan diagnosed the Applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and features of Somatic Pain. Dr. Pojhan’s report was provided to the Respondent on February 1, 2021, about three and a half years following the accident, but, pursuant to the deadlines imposed in the Tribunal Order dated August 27, 2020.
14In turn, the Respondent sought to have the Applicant assessed pursuant to section 44 of the Schedule. The insurer’s examination (“IE”) was scheduled for April 5, 2021, however, an issue arose with the consent form the Applicant signed and the IE was rescheduled to May 6, 2021. No information or report related to this IE has been provided to-date.
15The Respondent submits that it has been denied the opportunity to assess the Applicant in a meaningful way. It further submits that the Applicant’s duty of good faith during the process has been breached. It characterizes the Applicant’s actions as a strategic attempt to deny the Respondent an opportunity to conduct an IE and submits that this behaviour should not be rewarded. I disagree.
16The Respondent is a sophisticated party to this dispute and is aware of the procedural rules and the options available to it. The Respondent could have moved to have the hearing adjourned to a later date, enabling it to conduct and complete the IE, but it did not. Likewise, it could have clearly advised the Applicant that it will suspend her benefits if certain documents are not produced. Consequently, it chose to do neither and, instead, chose to proceed with this hearing.
17While I find that Dr. Pojhan’s diagnosis was not supported by a medical file review or any of the other evidence in the file, it remains uncontested. The Respondent submits no evidence or opinion to counter it. As a result, I find that the Applicant sustained an injury which falls outside the minor injury definition and, thus, she is not bound by the MIG or the related funding limit on medical benefits.
Chronic Pain
18The Applicant suggests that she suffers from chronic pain, however, she provided no compelling evidence to support this claim. The Hospital records, CNRs from EZ Physio, and the psychological assessment report all fail to establish that the Applicant suffers from a chronic pain condition as a result of the accident. Conversely, the Respondent submits the IE reports of Dr. F. Abuzgaya, orthopaedic surgeon, and E. Korman, occupational therapist, which are unsupportive of the Applicant’s position. In any event, the Applicant’s psychological injuries remove her from the MIG and thus, a determination that she suffers from a chronic pain condition is not required for her to access funding outside of the $3,500.00 limit.
THE PSYCHOLOGICAL ASSESSMENT PLAN
19Considering the above, I find the psychological assessment plan to be reasonable and necessary to explore the extent of the Applicant’s psychological injuries. As previously noted, the Applicant was diagnosed with an Adjustment Disorder with Mixed Anxiety and features of Somatic Pain as a result of the accident and there is no evidence to the contrary. Thus, it is reasonable and necessary to determine the extent of those injuries and, if required, determine a treatment plan that best suits the Applicant’s needs.
THE PHYSIOTHERAPY TREATMENT PLAN
20I find no compelling evidence in favour of further physiotherapy for the Applicant. The CNRs from EZ Physio include little information and, despite the Applicant’s submissions, appear to refer to only four clinical visits. The Hospital records have no probative value when assessing whether the disputed physiotherapy treatment plan is reasonable and necessary. Those records only address the assessment and diagnosis from the day of the accident and are not contemporaneous with the physiotherapy treatment plan.
NON-EARNER BENEFITS
21The Applicant may be entitled to NEBs if she can prove that she suffers from a complete inability to carry on a normal life. The test for this benefit involves a review of the Applicant’s functionality at the time of the accident and compares that with her post-accident functionality. The onus is on the Applicant to prove that she qualifies for NEBs.
22I find that the Applicant has failed to meet her onus to prove that she suffers a complete inability to carry on a normal life. There is no evidence before me that supports the Applicant’s claim. She submits that difficulty with housekeeping duties, difficulty with falling asleep, nightmares, travel anxiety, changes in her mood, and a decrease in social relationships suggest that she meets the NEB test. However, there is no compelling evidence to show that these complaints prevent her from engaging in substantially all of the activities in which she ordinarily engaged in before the accident. The CNRs from EZ Physio and the Hospital records make no mention of the Applicant’s pre-accident functionality and fail to establish that the complaints listed above constitute a complete inability to carry on a normal life. Lastly, the IEs found that the Applicant failed to meet the NEB test.
INTEREST
23Pursuant to section 51(1) of the Schedule, the Applicant is entitled to interest on the unpaid psychological assessment. No other interest is owing.
AWARD
24Pursuant to section 10 of O. Reg. 664, the Applicant may be entitled to an award if the Respondent unreasonably withheld or delayed payment of a benefit. I find no evidence that the Respondent unreasonably withheld or delayed the payment of a benefit.
25The Respondent’s decision to deny funding for the psychological assessment was reasonable. It had no compelling evidence of a psychological impairment and sought an IE to determine if one is required. These actions are permitted by the Schedule; thus, they are reasonable.
26I see nothing unreasonable about the fact that the Respondent never sought to adjourn the hearing while it awaits the results of the IE. It is not required to do so but as outlined in my analysis above, the decision was consequential to its case before the Tribunal.
CONCLUSION
27The Applicant provided evidence of a psychological injury which is unopposed at this hearing. Thus, I find that she sustained a psychological injury and is not subject to the MIG and the $3,500.00 funding limit on treatment.
28The Applicant is entitled to the disputed psychological assessment as it is reasonable and necessary to determine the extent of her accident-related psychological injuries.
29The Applicant is not entitled to the remaining treatment and assessment plans because they are not reasonable and necessary.
30The Applicant failed to meet her onus to prove that she suffers a complete inability to carry on a normal life. She is not entitled to any NEBs as a result.
31Interest is payable on the psychological assessment pursuant to section 51 of the Schedule.
Date of Issue: June 14, 2021
Brian Norris, Adjudicator