Citation: Deu v. Royal & Sun Alliance, 2021 ONLAT 19-009110/AABS

Release date: 08/17/2021

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:

Huong Deu

Applicant

and

Royal & Sun Alliance

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Jessie V. Tran, Paralegal

For the Respondent:

Anju Sharma, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Huong Deu (“the Applicant”), was injured in an automobile accident on May 4, 2017 and sought benefits from the Respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2Royal & Sun Alliance, (“the Respondent”), determined that the Applicant’s injuries fell within the Minor Injury Guideline (“MIG”) and refused to pay for certain medical 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 issues to be decided in this hearing are:

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 MIG? Note: The parties agree the MIG limits have not been exhausted and their submissions shall identify the amount remaining.

II. Is the applicant entitled to $1,460.00 for chiropractic, massage therapy and acupuncture treatment, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) dated August 4, 2017?

III. Is the applicant entitled to $2,720.00 for chiropractic, massage therapy and acupuncture treatment, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) dated August 16, 2017?

IV. Is the applicant entitled to $2,900.00 for chiropractic, massage therapy and acupuncture treatment, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) dated October 6, 2017?

V. Is the applicant entitled to $2,600.00 for chiropractic, massage therapy and acupuncture treatment, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) dated December 6, 2017?

VI. Is the applicant entitled to $2,600.00 for chiropractic, massage therapy and acupuncture treatment, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) dated February 6, 2018?

VII. Is the applicant entitled to $3,200.00 for chiropractic, massage therapy and acupuncture treatment, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) dated April 4, 2018?

VIII. Is the applicant entitled to $2,200.00 for orthopaedic assessment, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) dated October 20, 2017?

IX. Is the applicant entitled to $2,350.00 for social work assessment, recommended by Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) dated October 20, 2017?

X. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as defined by the Schedule. She is subject to the $3,500.00 funding limit on treatment. The disputed treatment and assessment plans are not reasonable and necessary for her accident-related injuries.

Background

5The Applicant was struck on the left side by the side of a right-turning vehicle while she was crossing the street at an urban intersection. The Applicant collapsed after the low-impact collision with the vehicle and fell to the ground on her left side. Witnesses at the scene walked with the applicant to a nearby Community Health Clinic (“CHC”), where the Applicant had just attended prior to the collision, and she met with a family physician there. Clinical notes and records (“CNRs”) from the CHC state that the Applicant “initially appeared unwell with eyes closed and breathing fast”. But, after about 15 minutes, was able to recount the events and complained of pain on the left side and chest. The CHC physician examined the Applicant and found her left elbow was tender and had painful range of motion. Police attended at the CHC and the Applicant was taken by ambulance to the local hospital after.

6At the hospital, the Applicant complained of left thigh, elbow, and stomach pain. She was examined and x-rayed there. Elbow, femur, thoracic spine, pelvis, and chest x-rays showed no accident-related injury and the Applicant was diagnosed with a soft tissue injury and discharged with only a recommendation to use over-the-counter pain medication. Hospital records note that the Applicant “felt well” by the end of her hospital visit.

7The Applicant began massage and acupuncture treatment at Pain Rehabilitation Clinic about a week following the accident. The Respondent characterized the Applicant’s injuries as a minor injury as defined by the Schedule and funded treatment within the MIG. The Applicant disputes this characterization of her injuries and submits that her pre-existing health condition precludes her from achieving maximal recovery within the MIG and that she sustained psychological injuries and chronic pain, which fall outside of the minor injury definition.

THE MINOR INJURY GUIDELINE

8The 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.

9If 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.

10I find that, despite her pre-existing health concerns and the fact that it was a vehicle and pedestrian accident, the Applicant sustained a minor injury as defined by the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

Pre-Existing Injuries

11The Applicant submits that her pre-existing health condition precluded her recovery within the MIG. Specifically, she submits that anxiety, mild scoliosis, and osteoarthritis and baker’s cysts in the knees preclude her recovery. I also note that she fractured her cuboid bone in her right foot in the fall of 2016, about 5 months prior to the subject accident, and that the Applicant was disabled at the time of the accident and was receiving disability payments due to chronic headaches.

12The Respondent submits that there is no evidence that shows that the Applicant’s pre-existing health condition would preclude her recovery from her minor injury. It submits that the Applicant’s physician and treatment records are silent on her ability to recovery within the MIG.

13Despite the Applicant’s remarkable health history, I agree with the Respondent and find no evidence showing that the Applicant’s pre-existing health condition preludes her recovery within the MIG. While the Applicant was involved in a vehicle and pedestrian collision, the physical impact of the collision was minimal. Further, it appears that her recovery from accident-related injuries proceeded as her family physician anticipated and without complication. CNRs from the CHC indicate that the physician had no recovery concerns in the initial visit on the day of the accident and during a visit the following week. The records also show that the Applicant was feeling much better during a visit on June 8, 2017, about a month after the accident, that physiotherapy and acupuncture were helpful, and she was able to return to her regular swimming routine by that time.

14I acknowledge that the Applicant experienced acute back pain while visiting family out-of-town in July 2017, but I see no connection between that pain and the subject accident. The Applicant went to the hospital following the onset of the pain and was examined. X-ray results were negative, and she was discharged home. She followed up with the CHC about a week after her hospital visit and reported that her back pain had not recurred and made no accident-related complaints. Additionally, the Applicant had no accident-related complaints during an August 3, 2017 visit to the CHC for a scheduled appointment to follow up with her family physician regarding a recent cataract surgery.

15I am not convinced that the subject accident exacerbated the Applicant’s pre-existing conditions, as she claims. She provides no evidence to show that the accident had any measurable impact on her pre-existing conditions. Instead, her medical records show that she had mostly recovered by June and August 2017 and, in addition to the back pain experienced in July 2017, the Applicant had a bicycle accident around September 20, 2017 and experienced a fall around October 19, 2017.

Psychological Injuries

16The Applicant claims to suffer from an anxiety disorder as a result of the accident. The Respondent submits that the applicant’s psychological symptoms are subclinical and are related to her life circumstances that are unrelated to the subject accident.

17I agree with the Respondent and find no evidence showing that the Applicant sustained a psychological injury as a result of the subject accident.

18The Applicant has not been diagnosed with a psychological injury as a result of the accident. The family physicians at the CHC have made no such diagnosis and have never referred the Applicant for any psychiatric or psychological specialists because of the accident. Likewise, the physicians prescribed no medication to address psychological symptoms and have never referred her to therapy or counselling.

19The Bio-Psychosocial Assessment Report by Ashley Silvester, psychotherapist, dated April 9, 2018 (“the Silvester report”) is outweighed by the Insurer’s Examination (“IE”) Psychological Assessment Report by Dr. K. McCutcheon, psychologist, dated December 14, 2017 (“the McCutcheon report”). The Silvester report was produced by her treatment facility and acknowledged the Applicant’s language barrier, but the assessment involved no interpreter, unlike the McCutcheon assessment. The Silvester report notes that the Applicant experiences hallucinations pertaining to being hit by a vehicle, yet such a drastic symptom is repeated nowhere else in the Applicant’s medical record. The McCutcheon report includes no such remarkable symptoms.

20Dr. McCutcheon is the only psychologist in the medical record to provide an opinion on the Applicant’s accident-related mental health. The McCutcheon report found that the Applicant suffers from depression and anxiety, however, Dr. McCutcheon determined that the Applicant’s turmoil is related to her communal living situation and her desire to move out and into her own residence.

Chronic Pain

21The Applicant claims to have developed chronic pain as a result of the accident and that should remove her from the MIG. She submits that her healthcare providers characterize her pain as chronic and that her pain prevents her from exercising and has caused her to walk with a limp. The Respondent contends that the Applicant has never been diagnosed with chronic pain or chronic pain syndrome and her ongoing pain, such as her shoulder pain, pre-dates the accident.

22I find that the Applicant does not suffer from a chronic pain condition which would remove her from the MIG and the $3,500.00 funding limit on treatment. As mentioned previously, the Applicant had mostly recovered from her accident-related injuries by the summer of 2017. She was able to engage in a regular swimming routine and resumed bike riding. The IE reports dated December 14, 2017 all note that the Applicant reports independence with her activities of daily living. Medical records and reports mention that the Applicant was walking with a limp in July 2018, but never previously. The timing and lack of opinion connecting the limp to the accident, lead me to conclude that there is no causal connection between the accident and the observed limp.

THE DISPUTED TREATMENT AND ASSESSMENT PLANS

23An analysis on the disputed treatment and assessment plans is not required. The Applicant is subject to the $3,500.00 funding limit on treatment and has exhausted the funding. Therefore, she is not entitled to any further funding for her accident-related injuries.

CONCLUSION

24Although she was sideswiped by a vehicle while walking, the Applicant sustained only soft-tissue injuries as a result of the collision. Her injuries are properly characterized as a minor injury. Thus, she is subject to the MIG and the $3,500.00 funding limit on treatment.

25The Applicant is not entitled to the disputed treatment and assessment plans because she has exhausted the funding available to her for a minor injury.

26No interest is payable as no payments went overdue.

27The Application is dismissed.