Cho v. Certas Home and Auto Insurance Company, 2022 CanLII 109486

Cho v. Certas Home and Auto Insurance Company

Citation: Cho v. Certas Home and Auto Insurance Company, 2022 ONLAT 20-011492/AABS Licence Appeal Tribunal File Number: 20-011492/AABS

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:

Miyeon Cho

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES:

For the Applicant: Jae Hyon Cho, Counsel

For the Respondent: Stacey Karellas, Counsel

HEARD: By way of written submissions

OVERVIEW

1Miyeon Cho ("the applicant") was involved in an automobile accident on August 11, 2018. She sought benefits from Certas Home and Auto Insurance Company ("the respondent") pursuant to the Schedule,¹ which the respondent approved within the Minor Injury Guideline ("MIG"). When the respondent denied requests for further benefits, the applicant applied to this Tribunal to dispute the denials.

ISSUES

2The issues I must decide are:

1. Is the applicant entitled to a non-earner benefit ("NEB") of $185.00 per week from September 14, 2018 to date and ongoing?

2. Is the applicant entitled to an income replacement benefit ("IRB") from September 14, 2018 to date and ongoing?

3. 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?

4. Is the applicant entitled to $2,195.00 for a GP Medical Assessment, proposed by Direct Comfort Ltd in a treatment plan denied September 28, 2020?

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

RESULT

3The applicant has not established entitlement to any of the benefits sought, or that her accident-related impairments are not "minor" as defined by the Schedule, thus, her injuries are governed by the MIG and $3,500 treatment limit.²

ANALYSIS

Has the applicant established her injuries are not "minor injuries"?

4No. Section 18(1) of the Schedule provides that medical benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a "minor injury". 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."

5As a starting point, in this case, the evidence is clear that the applicant sustained strains and sprains to her back, neck, shoulders and wrist, which are defined as "minor injuries."

6For instance, following the June 5, 2018 accident, the applicant was examined at a hospital, underwent x-ray imaging of her cervical spine, chest, and right wrist which were negative, was diagnosed with wrist pain, prescribed pain medication and sent home. A few days later, she visited a walk-in clinic and was referred to North York Physiotherapy Clinic where she received physiotherapy treatment under the MIG. Although neither party has submitted those treatment records, the various claim forms submitted by the clinic, such as an August 24, 2018 Treatment Confirmation Form (OCF-18) and September 14, 2018 Disability Certificate (OCF-3), all identify minor injuries, such as Whiplash Associated Disorder (WAD 2).

7In fact, it appears the applicant completed all her treatment in about four months, as minor injuries. By October 2018, the respondent paid $1,565.00 to the North York Physiotherapy Clinic for invoiced services, $1,100 for hospital fees, and $100 for an OCF-18. By January 2019, based on the applicant's authorization, the respondent paid her the amounts remaining in the MIG – i.e., $735.00. All evidence points to the applicant having sustained minor injuries.³

Did the applicant suffer accident-related chronic pain or a psychological impairment sufficient to not be considered a minor-injury?

8No. The Tribunal has held that chronic pain with functional impairment or disability or a psychological condition may also warrant removal from the MIG.⁴

9In that regard, the applicant alleges that she suffers a "Chronic Pain Disorder Associated with Psychological Factors and General Medical Conditions" with psychological diagnoses such as Major Depressive Disorder and Post-Traumatic Stress Disorder.⁵ In support of those diagnosis and conditions, the only record the applicant relies on is a September 2020 Chronic Pain Assessment Report, that also contains psychological diagnoses. In fact, that report is the only record the applicant has submitted in support of any of her claims.

10The respondent submits that "the report ought to be given little to no weight due to its timing, the fact that not a single document was reviewed in completing the report, the diagnoses are inconsistent with the findings upon examination, the lack of an impairment, and the significant inconsistencies…" I agree.

11For example, regarding inconsistencies in the report, the "accident history" notes the applicant struck her head on her window, yet the Ambulance Call Report confirms the she did not; the report notes the applicant continues with treatment 1-2 times per week, yet there is no evidence to support treatment beyond the first four months; and the report notes that the applicant was employed as a server at the time of the accident, yet the OCF-1, OCF-23, OCF-3 forms and other records claim she was not employed.⁶

12In terms of the psychological diagnosis, it is not clear the general practitioner is qualified to make the psychological diagnoses, and no record documents a mental health complaint within the two plus years after the accident.

13In terms of chronic pain syndrome, there is no record of any physical or pain issues in the nearly two years from the end of the physiotherapy treatment, nor has the applicant established a functional impairment or disability, whether caused by pain from the accident or any other cause. I also note that the Tribunal has, at times, considered the six criteria set out in the AMA Guides to assess chronic pain claims⁷, but none of the criteria are meet.

Is the applicant entitled to $2,195.00 for the GP Medical Assessment?

14As for the treatment plan requesting funding for the chronic pain assessment, the applicant's injuries fall within the MIG and as the $3,500 limit has been exhausted, it is not payable. Nevertheless, I note even without the $3,500 limit and regardless of my finding that the applicant has not established she has chronic pain or a psychological diagnosis, the applicant has not established that it was reasonable and necessary to conduct an assessment to investigate if she has those conditions, given the reasons above. There is simply an absence of evidence to indicate she has either condition.

Has the applicant established that she is entitled to an IRB or NEB?

15No. Regarding the IRB, as the respondent correctly points out, there are several reasons why the applicant cannot be successful on her claim. First, it is not properly before the Tribunal as it was not identified as an issue in the application to this Tribunal, nor listed in the March 11, 2021 Case Conference Order as an issue for the hearing.⁸ Second, on August 16, 2018, the applicant made a binding election under s. 35 of the Schedule to pursue a NEB, rather than an IRB, when she completed and submitted an Election of Income Replacement, Non-Earner or Caregiver Benefit (OCF-10) form. Third, the applicant's OCF-1 (Application for Benefits) and OCF-3 (Disability Certificate) endorse that she was not working at the time of the accident.

16Likewise, if the forms were inaccurate and she was working, there is an absence of evidence establishing income on which an IRB could be calculated or an inability to work as a result of the accident. The only evidence she has produced – the Chronic Pain Report – identifies that she returned to work 4 months after the accident, part-time, as a server, but does not provide a cogent explanation of how her condition changed such that she was not able to work in the months following the accident.

17Regarding the NEB, which is properly in dispute, section 12 of the Schedule provides that an insurer shall pay a NEB of $185 a week to an insured person that suffers "a complete inability to carry on a normal life" as a result of and within 104 weeks after the accident, while s. 3(7)(a) defines a "complete inability to carry on a normal life" as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." The guiding principles for NEBs are discussed in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which focuses on a comparison of an applicant's pre-and post-accident activities.

18However, there are also several reasons the applicant cannot be successful on her claim. First, s. 36(3) of the Schedule provides that an applicant is not entitled to a NEB for any period prior to submitting a Disability Certificate. The Disability Certificate and all related claim forms did not endorse that the applicant suffered a complete inability, except possibly the Chronic Pain Report which was authored after the 104-week eligibility period.

19Second, the applicant has not provided any submissions on the NEB, and thus she has not provided a Heath analysis providing a meaningful pre-and post-accident picture of her activities and why she is entitled to a NEB. Third, my review of the available evidence shows it does not establish a complete inability. What the evidence does potentially show, if I were to accept it, is that some of the applicant's "ordinary activities" were affected, but those changes are well short of a "complete inability". For instance, the applicant submits that she has difficultly sitting for long periods, yet she still manages to attend a college program full-time.

ORDER

20The applicant is not entitled to an income replacement benefit or a non-earner benefit. The applicant has not established that her accident-related impairments are not "minor" as defined by the Schedule, and thus, her injuries are not governed by the MIG. The applicant is not entitled to the requested treatment plan or interest. The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg 34/10, as amended.
2. 2With all the benefits at issue, including establishing that the $3,500 treatment limit does not apply, the insured bears the onus on a balance of probabilities.
3. 3I note s. 18(2) of the Schedule provides that the $3,500 limit does not apply if an applicant provides evidence of a documented pre-existing medical condition that prevents achieving maximal recovery. The applicant, however, has not identified any pre-existing condition or provided such evidence.
4. 4Sidhu v TD General Ins. Co., 2020 CanLII 94816 (ON LAT), at para 16 (Adjudicator Hines); 16-000438 v The Personal Ins. Co, 2017 CanLII 59515 (ON LAT)(Adjudicator Neilson), at para 27.
5. 5See Applicant's Tab 1, page 11.
6. 6See respondent's submission, at para. 33 for additional examples.
7. 7M.A. vs. Aviva Insurance Canada, 2019 CanLII 101601 (ON LAT), at paras 16 – 18.
8. 8See I.S. and Allstate Ins. Co. of CA, 2019 CanLII 101539 (ON LAT)(Adjudicator Pinto) at paras 12-13.