Licence Appeal Tribunal File Number: 19-012514/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:
Wengang Xu
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Devika Maharaj, Paralegal
For the Respondent:
Amanda Faulkner, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Wengang Xu, (“the Applicant”), was involved in an automobile accident on November 11, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2Aviva Insurance Company, (“the Respondent”), determined the Applicant’s injuries fell within the Minor Injury Guideline (the “MIG”) and refused to pay for certain medical benefits. In addition, the Respondent refused to pay Income Replacement Benefits (“IRBs”) to the Applicant. 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 in dispute for this hearing are:
I. Is the Applicant entitled to IRBs in the amount of $222.49 per week for the period from October 9, 2018 to-date and ongoing?
II. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 funding limit?
III. Is the Applicant entitled to a psychological treatment plan in the amount of $4,510.70, dated February 18, 2018?
IV. Is the Applicant entitled to a chiropractic treatment plan in the amount of $3,235.55, dated March 29, 2018?
V. Is the Applicant entitled to a chiropractic treatment plan in the amount of $1,422.81, dated July 12, 2018?
VI. Is the Applicant entitled to the costs of examinations as follows:
i. $2,204.94 for a psychological assessment plan, dated December 22, 2017; and
ii. $1,996.00 for a chronic pain assessment plan, dated September 7, 2018?
VII. Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
4I find that the Applicant sustained a predominantly minor injury and is subject to the MIG and the $3,500.00 funding limit on treatment. He is not entitled to IRBs, the disputed treatment and assessment plans, or interest.
THE ACCIDENT AND PRELIMINARY ISSUE
5The Applicant was walking in an industrial area of Toronto when, according to him, he was struck on the left side by a right-turning vehicle, travelling at about 10 km/h (“the accident”). According to the Respondent, no contact occurred between the Applicant and the vehicle. The Respondent takes the position that no accident occurred because there was no contact and the Applicant is not entitled to accident benefits as a result. In reply, the Applicant submits that the police report confirms an accident occurred. To him, the police report, which was taken at the hospital, is more reliable than the collision field report from the scene of the accident. He says that his comments documented in the latter report were translated through a passenger of the vehicle involved in the incident.
6Often, the issue of whether an accident occurred is ordered to a preliminary issue hearing prior to addressing the substantive issues. On rarer occasions, it is addressed during a substantive hearing together with other issues. Regardless of the occasion, the issue is identified in a written Order by the Tribunal. In this case, the Orders prompting this hearing exclude any reference to the preliminary issue of whether an accident occurred. In addition, the Applicant’s initial submissions never addressed the preliminary issue and I see no evidence showing that the Respondent raised the issue prior to making response submissions.
7I conclude from the above that the preliminary issue was never ordered to a hearing by an adjudicator and that it was not addressed at a case conference or during the pre-hearing motions related to this matter. As a result, I find that the preliminary issue is not within my jurisdiction for this hearing and I will not consider the Respondent’s submissions on it.
BACKGROUND
8The Applicant, the driver, and the passengers in the vehicle remained at the scene following the accident. Police and ambulance attended at the scene and the attending constable noted that the Applicant presented with no obvious injury but complained of back pain. The ambulance records state that the Applicant received translation assistance from a passenger of the vehicle involved in the accident. The ambulance records also note that, despite his complaints of being struck on the left side, the Applicant’s primary complaint was right lower back pain. Paramedics examined the Applicant and found no obvious signs of trauma, injury, or bruising. Paramedics also noted in the ambulance report that the vehicle was dirty and dusty and there was no dents or smudges of dirt or dust that would indicate any impact occurred.
9At the hospital, the Applicant complained of low back pain and was assessed. His was diagnosed with minor trauma and discharged home with a prescription for pain medication. He started physiotherapy treatment a few days after his hospital visit and went to his family physician Dr. H. Liu, a day after starting physiotherapy. The Applicant complained of low back pain to Dr. Liu. Dr. Liu assessed the Applicant but diagnosed no injuries. Nevertheless, Dr. Liu gave the Applicant a note to refrain from work for 3 weeks and advised him to continue with physiotherapy and use heat and ice as required.
10The Respondent accepted the Applicant’s claim and characterized his injuries as falling within the “minor injury” definition in the Schedule and subjected him to the MIG. The Applicant disputes the characterization of his injuries. He did not expressly state why the MIG should not apply but suggests that it should not because he had pre-existing back pain. He also submitted a chronic pain assessment report and his submissions highlight a diagnosis of an adjustment disorder with depression and anxiety. I infer from this that the Applicant claims that he sustained chronic pain and psychological injuries which fall outside of the “minor injury” definition. In addition, the Applicant submits that his injuries disable him from working as a labourer in the seafood department of a supermarket, entitling him to IRBs.
THE MINOR INJURY GUIDELINE
11The 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 his recovery if subject to the MIG and the $3,500.00 funding limit.
12If 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.
13Upon review of the evidence and submissions, I find that the Applicant has not met his burden to prove that he sustained an injury that is not a minor injury as defined by the Schedule. As a result, he is subject to the MIG and the $3,500.00 funding limit provided by section 18 of the Schedule.
Pre-Existing Back Pain
14I find that the Applicant has not met his burden to prove that his pre-existing back pain is a medical condition that would preclude his recovery from accident-related injuries if subject to the MIG.
15The Applicant submits that he has a long-standing history of back pain. He refers me to a visit to his family physician, Dr. Liu on February 3, 2017. The clinical notes and records (“CNRs”) from that visit show that the Applicant complained of back pain, twice monthly, for the last 2 to 3 months. Dr. Liu examined him, diagnosed him with mechanical back pain, and discharged him with a prescription for pain medication and a recommendation to return to the clinic if symptoms persisted. Dr. Liu’s CNRs also include a notation from September 21, 2016, which states that the Applicant self-reported 10-20 years of chronic back pain and that he “can’t sit for long.”
16The Applicant’s submission of his long-standing history of back pain is contrary to his reports to assessors. The disability certificate by Dr. R. Babaloui, chiropractor, dated November 14, 2017, states that it is unknown whether the Applicant has any pre-existing diseases or conditions. There is no mention of pre-existing health conditions in the psychological assessment report by Z. Mok, psychotherapist, dated February 4, 2018. The pain medicine assessment report by Dr. M. Abounaja, physician, dated October 19, 2018 says that the Applicant had satisfactory physical and mental health pre-dating the accident and that the Applicant denied any musculoskeletal complaints. In the June 7, 2018 occupational medicine insurer’s examination (“IE”) report by Dr. C. Sandhu, physician, the Applicant reported no significant medical history.
17The information in the various CNRs provide nothing remarkable that would indicate that back or shoulder pain precludes the Applicant’s recovery from his accident-related injuries if subject to the MIG. I reviewed the CNRs from the ambulance, hospital, and family physician, despite not being directed to any specific evidence. These records show a reported history of back pain on and off as well as an incident of shoulder pain and decreased range of motion from overreaching in late October 2016. There is no indication that these prior complaints would have any impact on the Applicant’s recovery from a minor injury.
18To me, the documented complaints of back or shoulder pain pre-dating the accident are insufficient to remove the Applicant from the MIG. As noted above, not only must the Applicant show that he had a pre-existing medical condition, but he also needs to show that the condition will preclude his recovery from accident-related injuries if subject to the MIG. Here, there is little evidence to show that the Applicant sustained any injuries as a result of the accident and there is certainly no evidence to show that back or shoulder pain will preclude his recovery from his minor injury.
Chronic Pain
19The Applicant submits that he was diagnosed with a chronic pain condition, suggesting that it should remove him from the MIG and the $3,500.00 finding limit on treatment. The Respondent submits that the physical injuries reported by the Applicant all fall within the “minor injury” definition.
20I find that the Applicant has not met his burden to prove that he developed a chronic pain condition as a result of the accident that would remove him from the MIG and the $3,500.00 funding limit on treatment.
21I find the pain medicine assessment report of Dr. Abounaja to be uncompelling and I prefer the reports of Dr. Sandhu and Dr. D. E. Mula, physician. The report by Dr. Abounaja, dated October 19, 2018, included no interpreter and reviewed no medical records as part of the assessment. The failure to review medical records is important because the assessment was not conducted in the Applicant’s first language and relied exclusively on his self-reported medical history – which never included any reports of pre-existing back and shoulder pain. In addition, Dr. Abounaja opined in the report that chronic pain is associated with significant and reliable impairment of functional status, yet Dr. Abounaja’s physical assessment of the Applicant showed very little functional impairment. The Applicant demonstrated normal range of motion throughout his body with some pain in the low back during testing as well as slight restriction in the shoulder during external and internal rotation. To me, Dr. Abounaja’s conclusion is inconsistent with the findings in the physical examination.
22I prefer the reports of Dr. Sandhu and Dr. Mula because the assessments included an interpreter, a document review and, importantly, the conclusions in the reports are consistent with the physical examination. Dr. Sandhu’s June 7, 2018 assessment and report found that the applicant had a normal examination with functional range of motion in the back, shoulders, hips, and knees. Dr. Sandhu concluded that the Applicant’s presentation was consistent with myofascial sprains and the Applicant did not demonstrate any impairment of sufficient scope that would result in a substantial inability to engage in his pre-accident employment. Dr. Sandhu completed an addendum report after the Applicant submitted imaging results from an MRI on May 9, 2018. Dr. Sandhu’s opinion remained the same. Dr. Mula conducted a paper review IE and agreed with Dr. Sandhu’s opinion and concluded that the Applicant’s injuries fell within the “minor injury” definition.
23The IE reports are consistent with the information in the findings in the Sports Medicine Clinic notes. The Applicant was referred there by his family physician and met with Dr. Al-Rawi on February 15, April 5, and May 16, 2018. From those visits, Dr. Al-Rawi diagnosed the Applicant with pattern 1 back pain with degenerative disk disease identified on an MRI. The Applicant was given exercises to complete at home and encouraged to seek physiotherapy treatment. The Applicant also went to a sports medicine clinic for a consultation on November 19, 2018. There, a physical examination was performed, no remarkable findings were made, and the Applicant was advised to continue with physiotherapy. The Applicant later returned to the pain clinic on February 27, 2019 with complaints that his low back pain was reaggravated and that he now has bilateral knee pain. Yet, the physical assessment revealed normal results. Another follow-up occurred on March 21, 2019, when the Applicant complained of low back pain and bilateral knee pain. Similarly, the physical assessment on March 21, 2019 showed mostly normal results but for a slight reduction in range of motion on straight leg raises. The Applicant was encouraged to try acupuncture and continue with yoga, stretching, and exercises. This recommendation is different than what is seen in typical chronic pain cases, were a multidisciplinary treatment approach, which includes psychological treatment, is generally preferred. Dr. Abounaja, whose report was found to be uncompelling, is the only physician who recommended that the Applicant engage in a multidisciplinary treatment program.
24If I am wrong, and the Applicant does in fact have a chronic pain condition, I am not convinced by the evidence and submissions that the condition is as a result of an accident. As noted previously, the Applicant has a history of ongoing back and shoulder pain that predates the subject accident. The impact between the Applicant and the vehicle was minimal and hospital records following the accident diagnosed “minor trauma” and ambulance records question whether there was contact between the Applicant and the vehicle involved.
Psychological Injuries
25The Applicant made no submissions to indicate that he should be removed from the MIG due to psychological injuries. Nevertheless, I have considered this possibility because psychological symptoms are mentioned throughout the Applicant’s submissions and evidence. However, based on this evidence, I find that the Applicant’s injuries are properly characterized as falling within the “minor injury” definition.
26The Applicant submitted part of the psychological assessment report of Z. Mok, psychotherapist, and M. Lotfalizadeh, psychologist, dated February 4, 2018. The assessors in that report found that the Applicant suffers from severe depression and anxiety and that he meets the criteria for a diagnosis of an adjustment disorder with mixed anxiety and depressed mood as well as specific situational phobia (pedestrian). They conclude in the report that the Applicant’s psychological injuries are not included in the MIG.
27On the contrary, the Respondent submits the IE report of Dr. Mandel, psychologist, dated May 16, 2018. Dr. Mandel found that the Applicant reports no avoidance behaviour, displayed no discomfort or emotional reactivity when discussing the MVA, and psychometric testing showed a pattern of responding that falls far beyond the acceptable standard, indicating the possibility of symptom magnification. Dr. Mandel concluded that there is a lack of consistent objective information that would support a diagnosis of a psychological injury.
28I prefer Dr. Mandel’s report over the report of Z. Mok and M. Lotfalizadeh because it included a review of the Applicant’s medical records and is consistent with the Applicant’s medical records. Dr. Mandel reviewed the clinical notes and records of Dr. Liu, the IE reports of Dr. Sandhu, ambulance and hospital records, as well as various claims forms. There is no indication that Z. Mok and M. Lotfalizadeh reviewed any medical records as part of their assessment. In addition, the report by Z. Mok and M. Lotfalizadeh concluded that the Applicant suffers from severe depression and anxiety, yet the balance of the medical evidence, such as Dr. Liu CNRs, shows no evidence of symptoms of severe depression and anxiety. Lastly, the Applicant’s assessment was conducted by a psychotherapist under the supervision of a psychologist. Whereas the Mandel assessment was conducted by a psychologist. Here, I prefer the direct opinion of a psychologist over that of a psychotherapist, supervised by a psychologist.
29Considering the submissions and evidence, I find that the Applicant sustained a predominantly minor injury as defined by the Schedule. Thus, he is subject to the MIG and the $3,500.00 funding limit on treatment.
THE DISPUTED TREATMENT AND ASSESSMENT PLANS
30An analysis of whether the treatment and assessment plans are reasonable and necessary is not required. The Applicant consumed $3,500.00 in treatment, which is the funding limit for the treatment of minor injuries.
INCOME REPLACEMENT BENEFITS (IRBs)
31Pursuant to section 5(1)1 of the Schedule, IRBs are payable to insured persons who, within the first 104 weeks following the accident, are substantially unable to perform the essential tasks of their pre-accident employment as a result of an impairment. After the first 104 weeks, pursuant to section 6(1)(b), the test to qualify for IRBs expands to whether the Applicant suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. According to reports, the Applicant’s essential work tasks includes cleaning and packaging fish, carrying boxes, sweeping, and cleaning.
32I reviewed the submissions and evidence and find that the Applicant is not disabled from completing his essential tasks of employment as a result of an injury sustained in the subject accident.
33The contact between the Applicant and the vehicle was minimal and I find no credible link between the Applicant’s inability to work and the subject accident. The ambulance and hospital records demonstrate that the Applicant sustained virtually no injuries as a result of the accident. As noted above, doctors at the hospital diagnosed the Applicant with nothing more than “minor trauma.” Yet, the Applicant claims that he remains disabled from working as a result of the minor trauma, more than four years after the accident.
34The disability certificate submitted by the Applicant, anticipated that the Applicant would be disabled for 9-12 weeks. As far as I know, no other disability certificate was submitted.
35The Applicant’s family physician, Dr. Liu, does not conclusively connect the Applicant’s inability to work with the subject accident. Indeed, Dr. Liu wrote notes for the Applicant on November 16, 2017 and February 1, 2019, stating that he is unable to work due to medical issues for three weeks and one month, respectively. To me, Dr. Liu’s latter recommendation is not as a result of the subject accident but based on the totality of the Applicant’s health status, including his pre-existing back and shoulder issues. Regardless, the notes are not evidence of a substantial inability to complete his essential work tasks as a result of the subject accident.
36Dr. M. Abounaja’s report dated October 19, 2018 is uncompelling. Dr. Abounaja’s report appears to be the only document which supports the Applicant’s claim that he is disabled from performing the essential tasks of his employment. However, the assessment associated with that report included no review of the Applicant’s medical records. Instead, Dr. Abounaja relied exclusively on the Applicant’s self-reported medical history to determine that the Applicant had satisfactory physical and mental health pre-dating the accident. Further, the Applicant denied any musculoskeletal complaints pre-dating the accident. As a result, Dr. Abounaja’s conclusion is based on false information which led to the conclusion that the accident was the cause of the Applicant’s impairments, rather than his pre-existing back and shoulder issues.
37Lastly, the IE reports of Dr. Sandhu, Dr. Mandel, and Dr. Mula all found no impairment attributable to the subject accident. For the June 7, 2018 report, Dr. Sandhu reviewed Dr. Liu’s CNRs and conducted a physical examination. Dr. Sandhu determined that the Applicant had functional range of motion throughout his body and that he did not demonstrate any impairment of sufficient scope that would result in a substantial inability to return to his pre-accident employment. An addendum report of the same date included a review of an MRI dated May 9, 2018, but Dr. Sandhu’s opinion remained unchanged. Dr. Mandel’s report dated June 7, 2018 found that the Applicant provided a lack of consistent objective information that would support a diagnosis of a psychological impairment in direct relation to the subject accident. From a psychological perspective, Dr. Mandel found that the Applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. Dr. Mula, an expert in chronic pain management, conducted a paper review and issued a report dated September 25, 2018. Dr. Mula concluded that the Applicant sustained a minor injury after reviewing the various records provided, including Dr. Liu’s CNRs.
38It is the Applicant’s onus to prove that he sustained an impairment as a result of the accident which prevents him from performing the essential tasks of his employment as a labourer in a supermarket. I acknowledge that it is possible that the Applicant has an impairment that impacts his ability to work. However, I am not convinced on the evidence and submissions that the Applicant suffered an impairment as a result of the subject accident, let alone one that precludes him from preforming the essential tasks of his employment.
INTEREST
39Interest is only payable on any overdue payment of benefits pursuant to section 51 of the Schedule. As no payments are overdue, no interest is payable.
CONCLUSION
40There is no evidence to show that the Applicant sustained anything more than a minor injury as a result of the subject accident. There is no compelling evidence that he has a pre-existing condition which would preclude his recovery from accident-related injuries if he is subject to the MIG and the $3,500.00 funding limit.
41The Applicant is not entitled to the disputed treatment plans because he has exhausted the $3,500.00 funding limit for minor injuries.
42No interest is owed.
Released: March 25, 2022
Brian Norris
Adjudicator