Citation: Ly v. Waterloo Insurance, 2022 ONLAT 20-006347/AABS

Licence Appeal Tribunal File Number: 20-006347/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:

Peng Chay Ly

Applicant

and

Waterloo Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Robert Lamot, Counsel

For the Respondent:

Ashleigh Leon, Counsel

HEARD:

By way of written hearing

1The applicant was involved in an automobile accident on August 8, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)¹. 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 following issues are to be decided by the Tribunal:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore already consumed the $3,500.00 limit and in the Minor Injury Guideline? Note: The parties agree the MIG limits have been exhausted².

ii. Is the applicant entitled to $573.77 for chiropractic services recommended by Roger Singh in a treatment plan dated November 14, 2018?

iii. Is the applicant entitled to $3,245.94 for chiropractic services recommended by Shanthi Jebaraj in a treatment plan dated January 16, 2019?

iv. Is the applicant entitled to $2,681.88 for chiropractic services recommended by Nana Yaa Barnes, in a treatment plan dated May 13, 2019?

v. Is the applicant entitled to $2,295.33 for a psychological assessment recommended by Dr. Marco Chiodo, in a treatment plan dated November 7, 2018?

vi. Is the applicant entitled to $2,539.00 for a chronic pain assessment recommended by Michael Gofeld in a treatment plan dated August 12, 2019?

vii. Is the applicant entitled to $1,536.50 for an In-Home & Attendant Care Assessment recommended by Amaresh Parikshya in a treatment plan dated August 12, 2019?

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

ix. Is the applicant entitled to interest on the overdue repayment?

ANALYSIS

The Minor Injury Guideline

3Section 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

4Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of his medical and rehabilitation benefits payable shall not exceed $3,500.00.

5Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an applicant provides compelling medical evidence that he has a pre-existing medical condition that will prevent him from achieving maximal recovery from the minor injury if he is subject to the MIG funding limit.

Applicability of the Minor Injury Guideline

6The applicant submitted that as a result of the accident, he suffered physical injuries that are outside of the Minor Injury Guideline (the “MIG”). The applicant also submitted that as a result of the accident, he suffered a psychological injury and has a pre-existing condition that cannot be treated within the confines of the MIG to achieve maximal medical recovery and therefore, should also be excluded from the MIG.

7The respondent submitted that the applicant’s injuries fall within the MIG and its financial limits.

Does the applicant have any pre-existing conditions?

8Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.³

9The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

10The applicant relied on the clinical notes and records of his family doctor, Dr. Jasbir Singh Baath, which noted that approximately 3 months before the applicant’s accident⁴, he complained of pain in his right elbow, which increased when he lifted things, as well as tenderness in his lateral epicondyle. Dr. Baath opined the applicant had lateral epicondylitis in both his arms and proposed the applicant treat his condition with rest, ice, Ibuprofen, stretching and straightening exercises and Pennsaid liquid.

11The applicant also relied on the disability certificate (“OCF-3”) of Reshma Shetty⁵, physiotherapist, who noted the following injuries sustained by the applicant as a result of the applicant: Whiplash associated disorder (“WAD-II”) with complaints of neck pain and musculoskeletal signs, sprain and strain of the cervical and thoracic spine, sprain and strain of the shoulder joint, rotator cuff capsule, and elbow, tension headaches, headaches, dizziness and gassiness, acute pain, malaise and fatigue and muscle strain.

12The respondent submitted that the applicant’s elbow complaints were only noted in the above-referenced clinical notes and records of Dr. Baath of August 10, 2018. Furthermore, the applicant was not referred to a specialist or for any follow up in relation to his elbow pain, nor was the applicant prescribed medication, or recommended treatment beyond what was described in the doctor’s clinical notes and records.

13The respondent also submitted that the applicant has not shown that his right arm or elbow pain has materially interfered with the applicant’s activities of daily living (“ADL” s).

14The respondent relied on its Insurer’s Examination (“IE”) completed by Dr. Frank Loritz⁶, physician. Dr. Loritz noted that the applicant reported that the applicant continued his employment and was independent in his self-care and housekeeping.⁷

15The respondent also argued that the applicant has not provided medial evidence that details how the applicant’s pre-existing elbow pain would prevent him from reaching maximum medical recovery if confined to the limits of the MIG.

16The respondent concluded by submitting that as the applicant bears the burden of responding to the criteria of section 18(2) of the Schedule and has not done so, the applicant’s physical injuries should be treatable within the MIG.

17After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not provided persuasive evidence that his pre-existing conditions requires removal from the MIG to achieve maximal medical recovery.

18I agree with the respondent’s argument, namely that the applicant has failed to provide medical evidence to support his position. I considered the applicant’s OCF-3 which listed the applicant’s injuries as including sprain and strain of his elbow; However, I found the OCF-3 to be less than persuasive, as the document did not comment on the applicant’s elbow injury as being a basis for removing the applicant from the MIG.

19Moreover, when reviewing the OCF-3 itself, I noticed that in part 8 of the document, where Ms. Shetty was asked to note the applicant’s pre-existing disease, condition or injury that could impact his ability to perform his ADLs, Ms. Shetty noted only “cholesterol”.

20After reviewing the evidence of Dr. Baath, I noted that the doctor does not discuss or specify that the applicant’s pre-existing lateral epicondylitis, or tennis elbow, would be a barrier to his recovery.

21As the only direct medical evidence that supported the applicant’s position was the diagnosis of the applicant’s elbow injury, he has not fulfilled his burden under s. 18(2) to be removed the MIG.

Did the applicant sustain predominantly minor physical injuries?

22The applicant also argued that as a result of the accident, he suffered from non-minor physical injuries, which require him to be removed from the MIG.

23To support this position, the applicant relied on the clinical notes and records of Dr. Baath. Two days after the accident, the applicant visited his family doctor, where the doctor noted that the applicant had been involved in an accident and noted the applicant reported an increase in his stiffness and pain since the accident. Dr. Baath opined that the applicant had muscle sprains and advised him to apply ice, use Advil and attend physiotherapy.⁸

24Dr. Baath also noted the applicant experienced tenderness in the back of his neck, upper and lower back, with the applicant’s range of motion for his neck and back being painful.

25In a follow up visit nearly two years later⁹, Dr. Baath noted that the applicant was still experiencing pain in his neck and upper back and recommended cervical spine exercises.

26The applicant also relied on a treatment plan (“OCF-18”) from Marco Chiodo¹⁰, psychologist, who noted that the applicant complained of pain in his neck, back, check, shoulders and right arm as well as headaches and dizziness after the accident.

27Finally, the applicant argued that Dr. Loritz’ s IE noted that the applicant: “developed epicondylar pain at the right elbow due to a strain injury”¹¹ and submitted that this is as a result of the accident.

28The respondent disagreed that the applicant’s physical injuries should be considered outside the MIG.

29The respondent relied on Dr. Baath’s clinical notes and records. The respondent noted that the applicant attended his annual physical examination shortly after the accident¹², where the applicant failed to mention the accident or any of his complaints or injuries related to it. Dr. Baath noted that the applicant was found to have no joint tenderness, a normal ROM, no deformity, with cranial nerves II – XII found to be normal. Dr. Baath also noted the applicant’s sensory exam results were normal, he scored a 5/5 in muscle power in all limbs but scored 2/3 for deep tendon reflexes.¹³

30The respondent also relied on the clinical notes and records of Dr. Baath from the applicant’s subsequent visit¹⁴, where the applicant denied experiencing muscle aches and pain. Nonetheless, Dr. Baath advised the applicant to exercise by walking at least 30 minutes per day, three times per week¹⁵. Dr. Baath echoed this recommendation at the applicant’s visit in June of 2019.¹⁶

31Despite visiting Dr. Baath several times¹⁷, the respondent argued that applicant reported feeling well and did not report his alleged accident-related pain.

32The respondent submitted that the next visit where the applicant reported pain was in November of 2020, where Dr. Baath noted¹⁸ the following:

“c/o pain in his neck and upper back he had an MVA last year could not get Physiotherapy last 6 months due to COVID-19”

33During the visit¹⁹, Dr. Baath advised the applicant to do exercises for his cervical spine. However, the respondent submitted that as Dr. Baath did not make any referrals, renew any prescriptions related to the applicant’s physical injuries, or make any other recommendations, the doctor’s evidence does not show that the applicant’s physical injuries require treatment beyond the MIG.

34The respondent submitted that the applicant sustained soft tissue injuries, which fall within the definition of a MIG injury²⁰. To support this, the respondent relied on its section 44 assessment performed by Dr. Loritz.²¹

35When Dr. Loritz assessed the applicant and authored his report²², the doctor found that the applicant suffered from myofascial pain symptoms in his neck, upper back and right arm as a result of the accident and diagnosed the applicant with myofascial sprains and strains of his cervical spine including a WAD I-II, with referral pain into his scapulothoracic area and epicondylar pain in his right elbow from a strain. Dr. Loritz did not comment on the applicability of the MIG with regards to the applicant’s injuries.

36Dr. Loritz re-assessed the applicant²³ and authored a subsequent IE²⁴, where the doctor found that as a result of the accident, the applicant suffered myofascial sprains and strains of his cervical spine including a WAD I-II and lateral epicondylitis. Dr. Loritz opined that the applicant’s accident-related injuries met the criteria for a minor injury.

37After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not persuaded me that his injuries are more than minor.

38Upon reviewing the evidence of Dr. Baath, I noted that he did not provide any direct evidence that shows the applicant’s injuries are more than sprains and strains.

39Though the applicant provided evidence of having pre-existing lateral epicondylitis, or tennis elbow, as discussed above, such condition--meaning sprains and strains--would fall within the definition of minor injury found in section 3 of the Schedule. Moreover, the applicant has not provided any case law that proves otherwise. Dr. Baath never specifically addressed if the applicant’s injuries were minor; however, his clinical records do not indicate a physical diagnosis that would remove the applicant from the MIG.

40I also found Mr. Chiodo’s OCF-18 less than persuasive, as it only commented on the applicant’s self-reported symptomology. Though symptomology is an important component of medical evidence, self-reporting alone does not convince me that the applicant’s injuries are more than those described in section 3 of the Schedule.

41I also considered Dr. Loritz’s IE and gave it full weight, as this medical evidence contained both self-reporting and physicians’ objective examinations. As the applicant has not provided competing medical evidence to refute Dr. Loritz’s findings, I agree that the applicant has not met his evidentiary onus and find his physical injuries to be predominantly minor in nature.

Does the applicant have psychological impairments?

42Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

43The applicant claims that he sustained psychological injuries as a result of the accident that place his claims outside of the MIG.

44To demonstrate this, the applicant relied on the above-mentioned OCF-3 of Ms. Shetty²⁵, which noted that as a result of the accident, the applicant suffered from malaise and fatigue and recommended a psychological assessment.

45The applicant also relied on the above-mentioned pre-screen from the OCF-18 from Mr. Chiodo²⁶, which noted that the applicant experienced symptoms including: “depressed and anxious mood feelings of anger, worry about the future, feeling tired and having limited energy, problems initiating and maintaining sleep, fear/anxiety of driving and being a passage in a vehicle, difficultly concentrating.²⁷ The applicant expressed interest in psychological services to address his complaints.

46The respondent disagreed with the applicant’s position and submitted that the applicant had not suffered a psychological injury as a result of the accident and should be kept within the MIG.

47The respondent also argued that the applicant never mentioned any psychological symptoms or issues to Dr. Baath²⁸ or any other Ontario Health Insurance Plan (“OHIP”) provider.

48The respondent relied on its IE²⁹ completed by Dr. Alan Chan, psychologist, where Dr. Chan opined that the applicant did not suffer a psychological injury as a result of the accident. During the assessment, the applicant reported his mood to be okay, though acknowledged that a lack of sleep contributed to feeling irritable and tired. The applicant also stated that his primary source of stress contributing to insomnia was his financial difficulties.³⁰

49During Dr. Chan’s IE, the applicant also reported a 50% improvement in his physical pain and that he had returned to driving and was enjoying spending time with his friends and family.

50The respondent directed the Tribunal to the applicant’s psychometric testing, where the applicant scored in the “mild” range on the Depression, Anxiety and Stress Scale (“DASS-42”), where his scores were found to be in the “mild” ranges on the depression and anxiety subscales and within the “normal” range on the stress subscale.

51The respondent submitted that the OCF-18 of Mr. Chiodo should be given less weight, as the applicant failed to address if the applicant’s psychological symptoms was more than a sequela of a minor injury.

52The respondent also argued that Dr. Chan’s evidence should be preferred over that of Mr. Chiodo as, unlike Mr. Chiodo’s evidence, Dr. Chan’s medical evidence was obtained via self-reporting, a clinical interview and psychometric testing.

53After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant did not suffer a psychological injury as a result of the accident.

54Though I did consider the applicant’s OCF-3, Ms. Shetty did not identify how she determined that the applicant would benefit from a psychological assessment and therefore I found this evidence to be less than persuasive.

55When weighing the psychological evidence of Mr. Chiodo in comparison to that of Dr. Chan, I agreed with the respondent’s position; namely that Dr. Chan’s evidence should be afforded more weight as it was based on the applicant’s self-reporting, a clinical interview and psychometric testing, while Mr. Chiodo’s evidence was only based on a pre-screen interview of the applicant.

56I also agreed with the respondent and found it odd that the applicant failed to discuss his psychological symptoms with Dr. Baath after the accident; I would have expected this to be discussed, given the applicant’s allegations of symptomology and frequent visits to his doctor.

57Therefore, I find that the applicant has not suffered from a psychological injury as a result of the accident. As the applicant has exhausted the MIG’s limits, I do not need to address the disputed treatment plans in dispute.

Interest and award

58As I found that the applicant’s injuries fall within the MIG, and no benefits are outstanding, no interest or award shall be ordered.

CONCLUSION and order

59The applicant’s injuries fall within the Minor Injury Guideline.

60The applicant is not entitled to the disputed treatment plans.

61The applicant is not entitled to interest.

62The applicant is not entitled to an award.

Released: August 12, 2022