Jing Zhao v. TD General Insurance Company, 2022 CanLII 78896

Citation: Zhao v. TD General Insurance Company, 2022 ONLAT 20-010868/AABS

Licence Appeal Tribunal File Number: 20-010868/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:

Jing Zhao

Applicant

and

TD General Insurance Company

Respondent

DECISION

VICE-CHAIR: Beverly Brooks

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Alyson Spaling, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Jing Zhao, the applicant, was involved in an automobile accident on October 18, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The applicant who was denied certain benefits by the respondent, TD Insurance, submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

3The respondent initially determined that the applicant sustained a minor injury and subjected her to the Minor Injury Guideline (“MIG”) and the related $3,500.00 funding limit on medical benefits. The respondent later removed the applicant from the MIG on September 21, 2021 on the basis that she sustained psychological injuries, which are not included in the minor injury definition. However, it maintains that the applicant’s physical injuries are minor and that the applicant now has to prove that she is out of the MIG because of her physical limitations in addition to her psychological impairments, since she is seeking benefits in excess of the MIG cap in relation to her physical injuries.

4The applicant submits that she should no longer be subject to the MIG with respect to her physical limitations because she has been removed from the MIG. In addition to her psychological and physical injuries, the applicant claims that she suffers from chronic pain.

ISSUES

5The issues in dispute are:

i. Is the applicant entitled to $4,831.95 for chiropractic services proposed by Total Recovery Rehab Centre in a treatment plan (“OCF-18”) dated May 4, 2019?

ii. Is the applicant entitled to interest as per Section 51 of the Schedule?

RESULT

6I find that the chiropractic treatment plan dated May 4, 2019 is not reasonable and necessary as a result of the accident.

7As the applicant has not proven that the chiropractic treatment plan is reasonable and necessary, she is not entitled to interest pursuant to s. 51 of the Schedule.

Analysis

The Minor Injury Guideline Does Not Apply

8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

9The September 21, 2021 correspondence from the respondent to the applicant clearly indicates that the applicant has been removed from the MIG. Thus, the applicant has already been removed from the MIG for psychological impairments so it is not necessary that she be removed from the MIG for functional limitations. Once an applicant is removed from the MIG for one reason, the applicant is not required to apply to be removed for other reasons. Instead, the onus is on the applicant to prove on balance of probabilities that the treatments for which she is seeking approval are reasonable and necessary.

Is the May 4, 2019 chiropractic treatment plan reasonable and necessary?

10I find that the chiropractic treatment plan is not reasonable and necessary.

11The applicant consulted with her family doctor, Dr. Shi, nine days after the accident (October 27, 2018) with concerns about pain in her wrist, ankle, back and neck.¹ Dr. Shi recommended pain medication as well as physiotherapy and massage therapy. The applicant consulted Dr. Fung at Total Recovery Rehab Center a month later (November 2018) and began physical therapy. Dr. Fung provided an opinion of the applicant’s physical injures which included sprain and stain of sternoclavicular joint, wrist and ankle, dislocation, strain and sprain of joints and ligaments of shoulder, cervicalgia, dorsalgia and low back pain.² Although her family physician recommended physiotherapy shortly after the accident, the respondent notes that there is only one entry in Dr. Shi’s records that mentions the accident and the associated injuries.³

12The treatment plan (OCF-18) proposed by Total Recovery Rehab Centre includes “manipulation, multiple body sites; exercise for the spinal vertebrae; assessment (examination), total body; documentation, support activity; claimant transportation to treatment and acupuncture, multiple body sites.⁴ With respect to frequency, the plan includes sixteen sessions over a six-week period of the manipulation of multiple body sites, spinal vertebrae exercise and acupuncture. The goals of the treatment plan are to achieve pain reduction, to increase range of motion and to increase strength. This plan identifies the barriers to recovery as “persistent pain, continual presence of radiculopathy/neurological anxiousness, multi-region injuries, sleep disorder and high disability index”.⁵ The treatment plan then states that these barriers can be overcome by “rehab sessions including multidisciplinary sessions with associated stretching and strengthening program”.⁶ The plan states that the progress of the goals will be evaluated by several measures and questionnaires including a neck disability index questionnaire, an Oswestry back disability index, pain scale, range of motion and orthopedic and neurological tests.

13My view is that the treatment plan is not reasonable and necessary is based on the detailed IE assessment conducted by Dr. F. Ismail, physiatrist, which is more persuasive than the notes and recommendations of the applicant’s family doctors, Dr. D. Shi and Dr. J. Fung, and her chiropractor, Dr. G. Palantzas. Dr. Ismail specializes in physical medicine and rehabilitation and treats a variety of medical conditions that affect the spinal cord, nerves, bones, joints, ligaments, muscles and tendons. In his assessment of June 17, 2019, Dr. Ismail concluded that there was no accident related musculoskeletal or neurological impairment and that the applicant has sustained soft tissue injuries of her cervical spine, her shoulder and her lumbar spine. He concluded that the applicant’s physical injuries met the criteria of a minor injury as described by the MIG.⁷

14In his Physical Medicine and Rehabilitation Specialist Assessment, Dr. Ismail reported that the applicant initiated acupuncture and chiropractic treatments two weeks following the accident (the beginning of November 2018) and she “continues to attend therapies once per week”.⁸ His assessment specifically states that the applicant received acupuncture to her right ankle, chiropractic care to her back and tens machine to her neck and shoulders as well as massage.⁹ The applicant has been attending these treatment sessions since the accident in 2018 and her physical complaints persist. To me, this is evidence that the treatments lack effectiveness. Dr. Ismail did state that the applicant reported a 50 to 60 precent improvement in her accident-related symptoms due to these treatments.¹⁰

15I draw an adverse inference in finding that the applicant never provided the clinical notes and records from her treatment provider. Total Recovery Rehab Centre has been treating the applicant since November 2018 (two weeks after the accident). The clinical notes and records associated with those treatments are relevant because they address the applicant’s injuries, treatment and response to treatment. These records were requested by the respondent and the Tribunal prior to the hearing, however, the applicant never produced them. I infer from this that the records would be unfavourable to the applicant’s case.

16The applicant’s submissions do not provide any evidence that the chiropractic services are reasonable and necessary.

17According to the applicant’s submission, the chiropractic sessions were “effective right after the session, yet the pain returns days after”.¹¹ Since the pain returns mere days afterwards and the applicant has been attending these sessions since 2018, one could conclude that the chiropractic and acupuncture sessions at Total Recovery Rehab Centre are not very effective.

18Overall, the applicant has sought very little attention from her family physician, Dr, Shi, for her physical injuries. According to the respondent’s submission, there is only one entry by her family doctor about her physical pain.¹² From this and the information above, I conclude that the chiropractic treatment plan dated May 4, 2019 is not reasonable and necessary as a result of the accident.

INTEREST

19Interest is payable on the overdue payment of benefits, pursuant to section 51 of the Schedule.

20Since I have found that the payment of the chiropractic treatment plan is not reasonable and necessary, the applicant is not entitled to the payment of interest.

CONCLUSION

21I find that the applicant has not met her burden of proof on a balance of probabilities that the treatment plan for chiropractic services is reasonable and necessary. The applicant is not entitled to the treatment plan or interest.

22The application is dismissed.

Footnotes

1. 1Applicant’s Submission, page 2.
2. 2Applicant’s Submission, page 2.
3. 3Respondent’s Submission, page 6.
4. 4Applicant’s Document Brief, Total Recovery Rehab Center, OCF-18, May 4, 2019, page 9.
5. 5Applicant’s Document Brief, Total Recovery Rehab Centre, OCF-18, May 4, 2019, page 7.
6. 6Applicant’s Document Brief, Total Recovery Rehab Centre, OCF-18, May 4, 2019, page 7.
7. 7Respondent’s Submission, page 7.
8. 8Respondent’s submission, Physical Medicine and Rehabilitation Specialist Assessment, page 31.
9. 9Respondent’s submission, Physical Medicine and Rehabilitation Specialist Assessment, page 31.
10. 10Respondent’s Submission, Physical Medicine and Rehabilitation Specialist Assessment, page 31.
11. 11Applicant’s Document Brief, Psychological Assessment Report, May 12, 2021, page 3.
12. 12Respondent’s Submission, page 6.