Licence Appeal Tribunal File Number: 20-009597/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:
Xin Liang
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Asad Ali Moten
APPEARANCES:
For the Applicant:
Yu Jiang, Paralegal
For the Respondent:
Richard Tapp, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant (the “Applicant”) was involved in a motor vehicle accident on February 12, 2018. He seeks benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2At issue between the parties is the Applicant’s claim to payment for the cost of a psychological assessment. A threshold issue is whether the Applicant’s injuries are predominantly minor as defined in the Minor Injury Guideline (the “MIG”) under the Schedule.
3The Applicant’s claims to the insurer were denied, and now he appeals to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the “Tribunal”) for resolution of these claims.
4The Applicant argues that he has suffered psychological injuries that take him out of the MIG. He further argues that the psychological assessment he received was reasonable and necessary to assess and later treat his psychological injuries.
5The respondent insurer, The Personal Insurance Company (the “Respondent”), argues that the Applicant has not met his onus with respect to showing that his injuries are not predominantly minor, and further that he is not entitled to the proposed psychological assessment because he has exhausted his benefits limit under the MIG.
ISSUES
6The issues to be decided are:
a. Are the applicant’s injuries predominantly minor as defined in the MIG?
b. Is the Applicant entitled to $2,200.00 for a psychological assessment recommended by Somatic Assessments and Treatment Clinic in a treatment plan submitted March 8, 2019 and denied March 12, 2019?
c. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that, for the reasons below, the Applicant has not met his onus to prove, on a balance of probabilities that (a) he has suffered an injury as a result of the accident that is not minor; (b) the proposed treatment plan is reasonable and necessary; and (c) he is entitled to interest on any overdue payments.
BACKGROUND
8The Applicant was involved in a single vehicle accident on February 12, 2018. He was the driver of his car when it skidded on a patch of ice. The Applicant’s car hit a street pole. The airbags deployed and the Applicant was struck in the face.
9The Applicant suffered injuries, including worsening back pain. The Applicant did not, however, miss any time from work. In fact, he was on a plane at 5 am the morning after the accident.
10Earliest reports about injuries from the accident are when the Applicant visited his family physician in August 2018, six months after the accident. His physician recommended physiotherapy and chiropractic treatment. There was not note at this time about any psychological challenges.
11In November 2018 the Applicant reported increased fatigue, anxiety, and stress to his family physician. The Applicant’s family physician’s records indicate that these symptoms were as a result of a recent diagnosis of elevated ferritin.
12In January 2019, the Applicant saw an internal medicine specialist who opined that the Applicant may have obstructive sleep disorder, leading to fatigue and fogginess. The specialist recommended a sleep test, of which there is no indication if it was completed.
13The Applicant also underwent a section 44 physiatry examination in January 2019. The Applicant was found to be completely independent and unremarkable from a musculoskeletal perspective. The assessor did not note any psychological challenges.
14In March 2019, the Applicant attended Somatic Assessments and Treatment Clinic. The psychologist there identified phobias, headache, dizziness and giddiness, nightmares, sleep disorders, irritability, and anger as the ecosystem of psychological injuries affecting the Applicant. The psychologist completed a pre-screening report and proposed a treatment plan for a psychological assessment to determine the presence and extent of any psychological impairments related to the accident.
15The Respondent denied the proposed treatment plan in March 2019 on the basis that the Applicant’s injuries fell within the MIG. It does not appear that the Applicant was required to attend any independent insurer examinations as a result of the proposed treatment plan.
16The same provider who proposed the psychological assessment conducted a psychological assessment in January 2021, around the time a case conference was held in this matter. The Applicant reported challenges with poor memory and concentration, mood swings, poor sleep, travel anxiety, isolation, and increased irritability. The assessment also evidenced above average pain, depression, and anxiety.
17The Respondent sent a letter to the Applicant on February 2, 2021 in response to the psychological assessment. In its letter, the Respondent maintained its position that the Applicant’s injuries fell within the MIG, and denied the treatment recommendations contained in the psychological assessment.
18The Respondent has, to this point, approved the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG.
ANALYSIS
a. Are the Applicant’s injuries predominantly minor as defined under the MIG?
19I find that the Applicant has not met his onus to prove that he has suffered injuries that are not predominantly minor.
20The MIG establishes a framework for the treatment of minor injuries. Section 3(1) of the Schedule 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.” An applicant who falls within the MIG is eligible for up to $3,500 in medical and rehabilitation benefits.
21An applicant may be removed from the MIG if, on a balance of probabilities, they can demonstrate that the injuries they suffered are not within the minor injury definition. The Applicant bears the burden of proving that the MIG does not apply.1 The Tribunal commonly hears disputes about whether an applicant’s psychological conditions suffered are sufficient to remove an applicant from the MIG.
22There is some basis for the argument that a formal diagnosis is not required in order for psychological injuries to remove a person from the MIG,2 but there must be at least sufficient evidence, on a balance of probabilities, to show psychological injury suffered in the accident that would take an applicant out of the MIG.3
23In this case, the Applicant argues that there is sufficient evidence that he has suffered a psychological injury that takes him out of the MIG. Specifically, he argues that a psychological pre-screening in March 2019, and a psychological assessment in January 2021 are consistent in showing that the Applicant suffers from major depressive disorder, anxious distress, and specific phobia.
24The Applicant’s family physician completed a medical questionnaire in August 2018 in respect of the accident. When asked about the Applicant’s diagnosis at the time, and specifically about whether the Applicant has a physical or psychological impairment, the physician answered “lower back pain.” There is nothing in the questionnaire to indicate any psychological injury.
25The remainder of the Applicant’s family physician’s notes contain the following references to any psychological difficulties:
a. November 2018 - Increased stress, fatigue and anxiety especially given and as a result of recent diagnosis of elevated ferritin; stress/anxiety secondary to elevated ferritin;
b. January 2019 assessment by internal medicine specialist in relation to the Applicant’s elevated ferritin – “The patient feels unwell in general. He feels fatigued. He is tired first thing in the morning. He has daytime sleepiness. He feels foggy and has difficulty concentrating. He feels lightheaded from time to time…counseling regarding lifestyle modification was provided.”
26In other words, not a single one of the references in the family physician’s notes to a psychological challenge, let alone injury, of any kind are attributed at all to the accident.
27Nor is there any reference to psychological impairment in a section 44 examination report completed by a physiatrist. I recognize that a physiatrist may not be in a position to comment on the nature and extent of psychological injury, but the questionnaire completed specifically contemplates whether there were psychological injuries and none were noted.
28The Applicant’s first mention of psychological injury of any kind comes in March 2019 in the impugned OCF-18 and the pre-screening attached to it. The OCF-18 describes the Applicant as having memory, focus, and concentration issues, as well as sleepiness in the day. I note that these are the same complaints made in respect of the Applicant’s elevated ferritin levels just two months earlier. The OCF-18, however, contains no mention of this potentially confounding factor in the pre-screening.
29The next mention of any psychological injury to the Applicant comes two years later, when the same psychologist completed a psychological assessment. The assessment diagnosed the Applicant with major depressive disorder, anxious distress, and specific phobia of travel as a result of the accident.
30The Applicant argues that the Respondent should have scheduled a section 44 examination in response to the proposed treatment plan. Because the Respondent did not, however, the Applicant argues that the only evidence about the Applicant’s psychological injuries come from the Applicant, and therefore that evidence must carry the day. I disagree for the following reasons.
31First, the case law is clear that section 44 enables, but does not require an insurer to conduct an examination.4 The onus of proving, on a balance of probabilities, that one has suffered an injury that is not minor remains with the applicant – it is not a rebuttable presumption in the face of uncontested reports.
32Second, I find the case, relied upon by the Respondent, of B.N. v. The Co-Operators Insurance Company5 to be persuasive. In that case, the applicant provided a subsequent psychological assessment that suffered from the same weakness as the treatment plan proposing the psychological assessment – namely that there was nothing in the applicant’s medical records otherwise to indicate that the applicant was suffering from psychological issues. This was the insurer’s medical reason for denying the applicant’s claim that he was outside of the MIG, and which the Tribunal found sufficient as a medical reason. The Tribunal went on to consider whether the applicant had suffered a psychological injury, based on the psychological assessment and the fact that the insurer had not provided any rebuttal of the assessor’s professional opinion. The Tribunal found that the applicant had not satisfied his onus because, among other things:
a. there was nothing in the family physician’s records about psychological complaints or impairments, or a referral for psychological treatment;
b. the proposed treatment plan makes no reference to any psychological complaints before the pre-screening;
c. the applicant did not report any psychological complaints to the section 44 examiner for chiropractic treatment; and,
d. there was no evidence as to why the psychological pre-screening took place other than to provide evidence of psychological injury.
33The facts in the current instance share significant similarities with the case in B.N. I find that:
a. the Applicant’s medical records show no reports of psychological injury or impairment that might be reasonably linked to the accident;
b. specifically, the Applicant’s family physician, in a medical questionnaire specific to the accident, did not describe the Applicant as having any psychological injury;
c. the proposed treatment plan and pre-screening do not reference any prior complaints by the Applicant to anyone about psychological injuries arising from the accident;
d. there is no reference in the pre-screening to the Applicant’s similar challenges resulting from his elevated ferritin, as noted just two months earlier, leading to my finding that this was not disclosed to the author of the pre-screening;
e. the Applicant did not report any psychological injuries to the physiatrist who conducted a section 44 examination.
34The cases the Applicant submits are distinguishable. For example, in HKC v. Aviva Insurance Canada6 the applicant complained several times to her family doctor about her psychological difficulties from the accident, and was prescribed medication and recommended counselling. In the current instance, there was never any complaint to the Applicant’s family doctor about psychological difficulties stemming from the accident.
35Third, the lack of any other reported psychological impairment on the part of the Applicant is significant because there is no pattern from which the Tribunal can conclude that a psychological injury stems from the accident. In other words, if the Applicant has suffered a psychological injury, the Tribunal cannot conclude, on a balance of probabilities, that the Applicant suffered it in or as a result of the accident.
36Therefore, for the reasons above, I find that the Applicant has not met his onus to demonstrate, on a balance of probabilities, that he has suffered a psychological impairment as a result of the accident that would remove him from the MIG.
b. Is the Applicant entitled to $2,200.00 for a psychological assessment recommended by Somatic Assessments and Treatment Clinic in a treatment plan submitted March 8, 2019 and denied March 12, 2019?
37As described above, I found that the Applicant’s injuries are minor and as a result the Applicant is limited to treatment within the MIG amount. The uncontradicted evidence is that the Applicant has been approved or received the maximum amount under the MIG.
c. Is the Applicant entitled to interest on any overdue payment of benefits?
38Given my findings above, I find that the Applicant is not entitled to interest on any overdue payments.
ORDER
39For the reasons above, I find that the Applicant has not met his onus to demonstrate, on a balance of probabilities, that (a) he has suffered an injury as a result of the accident that is not minor; (b) the proposed treatment plan is reasonable and necessary; and (c) he is entitled to interest on any overdue payments. The application is dismissed.
Released: May 24, 2022
Asad Ali Moten
Adjudicator
Footnotes
- Scarlett v. Belair Insurance (Appeal P13-0014, November 28, 2013), para. 42.
- Saadati v. Moorhead 2017 SCC 28, para. 31.
- B.N. v. The Co-Operators Insurance Company 2020 CanLII 42652, para. 41.
- See, for example: D.G. v Certas Home and Auto Insurance Company 2019 CanLII 122717 (ON LAT), para. 11; W.C.P. v. Certas Home and Auto Insurance Company 2020 CanLII 19579, para. 28.
- 2020 CanLII 42652.
- 2020 CanLII 27396.