Zhou v. Allstate Insurance Company of Canada, 2022 CanLII 49962

Licence Appeal Tribunal File Number: 20-005905/AABS

Citation: Zhou v. Allstate Insurance Company of Canada, 2022 ONLAT 20-005905/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:

Chun Xia Zhou

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Jessica N. Telfer, Counsel

HEARD: In Writing

BACKGROUND

1Chun Xia Zhou, ("the Applicant"), was involved in an automobile accident on November 25, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").

2Allstate Insurance Company of Canada, ("the Respondent"), denied the Applicant's claims because it determined that all of the Applicant's injuries fit the definition of "minor injury" as prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).¹ As a result, the applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

3The issues to be decided in this hearing are:

(i) Are the Applicant's injuries predominantly minor as defined in section 3 of the Schedule and subject to the MIG and the $3,500.00 funding limit on treatment?

(ii) Is the Applicant entitled to a medical benefit in the amount of $2,969.08 for a chiropractic treatment plan by Easy HealthCare, dated April 2, 2018?

(iii) Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment plan by Somatic Assessments and Treatment, dated November 12, 2018?

(iv) Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as a result of the accident. She is not entitled to the disputed treatment and assessment plans because she has exhausted the funding available to her for medical and rehabilitation benefits. No interest is payable.

BACKGROUND

5The Applicant was the driver of a vehicle which was struck on the rear driver's side by another vehicle which was changing lanes. Police attended at the scene of the accident, but no paramedics attended, and the Applicant sought no medical attention the day of the accident.

6The Applicant went to her family physician, Dr. S. C. Chow, the following day with complaints of back tenderness. Dr. Chow examined the Applicant and diagnosed her with a strained upper and lower back and prescribed physiotherapy. The Applicant started physiotherapy treatment a few days later, pursuant to the MIG.

7The Applicant submits that she suffers from chronic pain and a psychological impairment as a result of the accident. She submits that she should be removed from the MIG as a result.

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.

9Minor 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.

10If 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.

Chronic Pain

11I find insufficient evidence to demonstrate that the Applicant suffers from a chronic pain condition as a result of the accident. No healthcare provider has diagnosed the Applicant with chronic pain, she does not exhibit any functional impairment as a result of pain and does not meet the American Medical Association ("AMA") criteria.

12There is no diagnosis of chronic pain or a chronic pain condition in Dr. Chow's clinical notes and records, ("CNRs"), the CNRs from EZ Physio, the insurer's examination, ("IE"), report of Dr. A. Marchie, physiatrist, or any of the other records provided. A diagnosis of chronic pain is not required to establish a chronic pain condition however, the other evidence does not support a finding of chronic pain that would remove the Applicant from the MIG.

13There is no evidence showing that the Applicant is functionally impaired by pain. The May 28, 2018 report by Dr. Marchie notes that the Applicant reported no significant changes to her abilities to perform her activities of daily living. In addition, there are no reports of a functional impairment documented in Dr. Chow's CNRs. The last accident-related complaint made to Dr. Chow occurred on March 28, 2018, when the Applicant complained of a sore right shoulder and was diagnosed with tendonitis, prescribed pain medication, and advised to follow up if the issue does not improve. Yet, the Applicant made no further accident-related complains visits to Dr. Chow after March 2018, despite attendance for other issues.

14Occasionally, the AMA guides are used to determine whether an insured suffers from chronic pain. Here, I find no compelling evidence that suggests the Applicant meets three of the six criteria in the AMA guide: she is not overly dependent on family members or healthcare providers, she is not dependent on or overusing prescription pain medication and there is no evidence of physical deconditioning due to disuse, a withdrawal from social milieu, or a failure to restore pre-injury function.

Psychological Injuries

15I find insufficient evidence to show that the Applicant sustained a psychological injury as a result of the accident.

16Dr. Chow's CNRs include no reference to psychological injuries or symptoms of a psychological injury. Dr. Chow's records span a period from before the accident to February 2021. The Applicant made several visits to Dr. Chow during that period, yet none are related to psychological symptomology. In fact, Dr. Chow noted that by October 3, 2019, the Applicant remained well and had no complaints.

17I find that the treatment plan dated November 12, 2018, by S. McDowall, psychologist, and the related pre-screen report are unpersuasive. While Dr. McDowall is noted as the author of the treatment plan, it is unclear who conducted the pre-screen interview with the Applicant and diagnosed the injuries listed on the treatment plan. The injuries listed are mixed anxiety and depressive disorder, phobias, headache, dizziness and giddiness, sleep disorders, nightmares, malaise and fatigue, and irritability and anger. Remarkably, none of these issues are referred to in Dr. Chow's CNRs. The absence of any reference to a psychological injury in Dr. Chows CNRs leaves the Applicant with no corroborating evidence to support the conclusion in the pre-screen report that finds that she suffers from symptoms of a psychological injury.

18The CNRs from EZ Physio are also unpersuasive. It appears that the Applicant never reported any symptoms of a psychological injury to providers. Instead, there are symptoms of nervousness and malaise/fatigue endorsed on standard assessment forms, completed by a chiropractor. These endorsements are unpersuasive because a chiropractor is not qualified to identify and diagnose psychological injuries and the symptoms endorsed in the standard form are not repeated by the Applicant in other medical records. An account of psychological injuries, documented in a treatment plan but not anywhere else in the Applicant's medical record, is insufficient evidence of a psychological injury which warrants removal from the MIG and the $3,500.00 funding limit on treatment.

THE DISPUTED TREATMENT AND ASSESSMENT PLANS AND INTEREST

19An analysis of whether the disputed treatment and assessment plans are reasonable and necessary is not required because the Applicant exhausted the funding available to her pursuant to the MIG.

20Interest is payable on the overdue payment of benefits. As the Applicant is not entitled to any further benefits, it follows that she is not entitled to interest.

CONCLUSION

21The Applicant sustained a minor injury as a result of the accident. There is no evidence that she suffers from a chronic pain condition or a psychological injury that would remove the Applicant from the MIG and the $3,500.00 funding limit on treatment.

22The Applicant is not entitled to the disputed treatment and assessment plans as she has exhausted the funding available to her pursuant to the MIG.

23No interest is payable as no payments went overdue.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.```