Citation: Ni v. Co-operators General Insurance Company, 2021 ONLAT 20-008618/AABS

Release date: 09/23/2021

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:

Zhou Qin Ni

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Philip Kai Kwong Yeung, Counsel

For the Respondent:

Daniel M Himelfarb, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on April 24, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues in dispute are as follows:

1. 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?

2. Is the applicant entitled to $2,200 for a psychological assessment recommended by Somatic Assessments and Treatment Clinic in a treatment plan submitted on September 28, 2018?

3. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant? (withdrawn)

4. Is the applicant entitled to interest on any overdue payments of benefits?

RESULTS

3The applicant’s injuries are 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.

4The applicant is not entitled to any benefits.

5The applicant is not entitled to any interest.

BACKGROUND

6The applicant was involved in a motor vehicle accident on April 24, 2017 when another vehicle hit the front passenger side of his car. No emergency vehicles were called. There was virtually no damage to the applicant’s vehicle other than some scrapes and scratches on the front section of the vehicle.¹ The applicant has no pre-existing medical issues.

7The applicant saw his family doctor, Dr. T Choy, on December 21, 2017 complaining of discomfort in his upper left arm with lifting and movement and numbness in his left forearm and left palm. Dr. Choy recommended that the applicant attend physiotherapy and massage.² The applicant took physiotherapy at Point Grey Physio from April 2017 to September 2017. The applicant saw Dr. Choy on November 18, 2018 who diagnosed him with cervical radiculopathy and recommended physiotherapy.³

8Dr. Kleinman, physician, in a section 44 report dated December 12, 2017, noted that the applicant reported 50% improvement in his back and neck. The applicant had not been referred to any specialist and was not on any medication.⁴ Dr. Kleinman indicated that the injuries were soft tissue injuries characterized as WAD-II soft tissue sprain/strain injury and thoracolumbosacral sprain/injury. The applicant had returned to work and was able to complete activities around the house. Dr Kleinman opined that the applicant had no neurological impairment and should be treated within the MIG.

9The applicant saw a new family doctor, Dr. Shu-Chieh Yu, on April 16, 2019 reporting left shoulder pain. The applicant saw Dr. Yu on August 26, 2019, September 9, 2019 and February 2020. Dr. Yu diagnosed the applicant with rotator cuff impingement/tendonitis and recommended physiotherapy.⁵ The applicant was advised to take physiotherapy, complete shoulder exercises and take steroid injections, if there was no improvement. On February 27, 2020, Dr. Yu noted that the applicant appeared well and that range of motion in the back was normal.⁶

10Dr. Cheryl Bradbury, psychologist, in a section 44 psychological report dated May 14, 2019, noted that the applicant reported independence with self-care, cooking, light household chores, and caregiving activities. The applicant indicated that he completed home exercises, including jogging. Dr. Bradbury opined that the applicant did not met the criteria for a DSM-5 diagnostic criteria for any disorder that could be attributed to the accident. Dr. Bradbury opined that the applicant did not present any psychological sequela that would complicate or prolong the applicant’s recovery.⁷

11The applicant saw Dr. McDowall, psychologist, on December 9, 2020 complaining of ongoing pain at his shoulders, and left side of his body, difficulties with falling and remaining asleep, nightmares, fatigue, poor concentration, mood swings, depression, frustration, and irritability. Dr. McDowall diagnosed the applicant with Major Depressive Disorder with Anxious Distress and Specific Phobia (Travel).⁸

ANALYSIS

Applicability of the MIG

12Section 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.”

13An insured may be removed from the MIG if he can establish that his accident-related injuries fall outside of the MIG or, under s. 18(2), that the has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery, if he is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

14The applicant’s position is that the applicant’s injuries are not within the MIG because the applicant has reported psychological issues resulting from the accident, being headaches, concentration problems, sleep issues and depression. The applicant’s position is also that he is suffering from chronic pain, with pain and discomfort in his neck, shoulder, and lower back which should also take the applicant out of the MIG.

15The respondent’s position is that the applicant’s injuries are within the MIG. The respondent’s position is that the applicant received a small amount of physical therapy until 2017, has used no accident-related prescription medication, was not referred to specialists and has provided no evidence of any psychological condition to take him out of the MIG.

16The respondent’s position is that the applicant’s medical practitioners have not diagnosed the applicant with chronic pain or chronic pain syndrome, as a result of the accident. The applicant has lost no time off work and has returned to his pre-accident activities of daily living, including exercising and jogging. The applicant has suffered no impairment in functionality.

17The respondent takes issue with the report of Dr. McDowall dated December 13, 2020, diagnosing the applicant with Major Depressive Disorder. Its position for rejecting Dr. McDowall’s report are as follows: the report was completed three and a half years after the accident, which raises a causation issue; there are no complaints to his family doctors about psychological issues other than Dr. Choy on November 18, 2018, which was about being more stressed out because of his looking after his parents and not the accident; there is no medical evidence to corroborate the diagnosis; and the fact that the applicant never requested psychotherapy treatment or counselling or was ever referred to a psychiatrist or prescribed medicine to treat psychiatric illness.

18The respondent also relies on the section 44 psychological report of Dr. Bradbury opining that there was no psychological impairment.

19I agree with the respondent’s position and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The accident was a very minor accident. Both family doctors that the applicant attended recommended only physiotherapy and massage therapy to deal with the applicant’s injuries. Dr. Kleinman indicated that the injuries were soft tissue injuries, characterized as WAD-II soft tissue sprain/strain injury and thoracolumbosacral sprain/injury. The applicant had returned to work and was able to complete activities around the house and continued jogging. Dr Kleinman opined that the applicant should be treated within the MIG.

20I find there is limited indication from the medical evidence that the applicant’s physical accident-related impairments should be considered outside of the definition of minor injury under s. 3(1).

21The Tribunal has also determined that an applicant may escape the MIG if he suffers from chronic pain that causes functional impairment. The applicant’s medical practitioner’s have not diagnosed the applicant with chronic pain or chronic pain syndrome, as a result of the accident. The applicant has lost no time off work and has returned to his pre-accident activities of daily living, including exercising and jogging. The applicant has suffered no impairment in functionality.

22I find on the evidence that there is no medical diagnosis of chronic pain by the applicant’s medical practitioners, and any pain that the applicant is experiencing is not affecting his functionality either at work, or at home.

23Finally, an applicant may also escape the MIG if he sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). I agree with the respondent’s position set out in paragraph [17] above and the reasons outlined in that paragraph.

24I find that the applicant has not sustained a psychological impairment as a result of the accident. For these reasons, I find the applicant has not demonstrated that he sustained an impairment that warrants removal from the MIG as a result of the accident.

Is the treatment plan reasonable and necessary?

25Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plan in dispute is reasonable and necessary under s. 16 is not required.

Interest

26As no benefits are payable, it follows that interest under s. 51 does not apply.

CONCLUSION

27The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plan in dispute is not reasonable and necessary and no interest is payable.

Footnotes

1. 1Toronto East Accident File dated April 24, 2017 Tab B
2. 2Tab 2 Records form Silver star Medical p6
3. 3Ibid 1
4. 4Section 44 Physiatry Report of Dr. Max Kleinman dated January 8, 2018
5. 5Tab 3 Clinical Records of Dr. S. Yu September /October 2020
6. 6Clinical Records of Dr. Shu-Chieh from September 9, 2019 to October 22, 2020
7. 7Section 44 Report of Dr. C. Bradbury dated May 14, 2019 Tab 1
8. 8Tab 1 Psychological Assessment Report dated December 13, 2020.