Citation: Qin v. Certas Home and Auto Insurance Company, 2022 ONLAT 20-012897/AABS

Licence Appeal Tribunal File Number: 20-012897/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:

Xiong Li Qin

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Gregory Kung

APPEARANCES:

For the Applicant:

Xiong Li Qin, Applicant

Ankita Abraham, Paralegal

For the Respondent:

Masiya Ahmadzai, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION [AND/OR ORDER]

BACKGROUND

1The applicant, Xiong Li Qin, was injured in an automobile accident on June 13, 2019 and has sought accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)¹ and has claimed that she has suffered a number of physical and psychological injuries from the accident. The applicant applied for chiropractic services as well as costs associated for a psychological assessment.

2To date, Certas Home and Auto Insurance Company, the respondent, has paid $3,374.64 in medical and rehabilitation benefits to the applicant. The respondent has denied the applicant’s claims, because it determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).²

3The applicant was denied certain benefits by the respondent and submitted an application to the License Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

ISSUES

4The following issues are to be decided:

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

(ii) Is the applicant entitled to $200.00 ($1,300.00 less $1,098.91 approved) for chiropractic services, recommended by Total Recovery Rehab Center in a treatment plan (“OCF-18”) dated September 16, 2019?

(iii) Is the applicant entitled to $4,383.90 for chiropractic services, recommended by Total Recovery Rehab Center in an OCF-18 dated October 23, 2019?

(iv) Is the applicant entitled to $2,200.00 for a Psychological Assessment, recommended by Somatic Assessments and Treatment Clinic in an OCF-18 dated October 9, 2019?

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

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

5The issue of a submitted OCF-6 dated July 28, 2020 for a doctor’s note has been withdrawn/resolved prior to the date of the written hearing.

RESULT

6I find that the applicant has met her onus of proving that her accident-related impairments are not minor injuries and warrant removal from the MIG. The applicant is entitled to $2,000.00 towards the October 9, 2019 OCF-18 for a psychological assessment. The applicant is not entitled to the $200.00 charge for documentation and support activity within this OCF-18 as it is not reasonable and necessary. Interest applies on any overdue benefits incurred, pursuant to s. 51.

7The OCF-18’s for chiropractic treatment dated September 16, 2019 and October 23, 2019 are not reasonable and necessary. The applicant is not entitled to these treatments.

8The applicant is not entitled to an award under Regulation 664.

ANALYSIS

The MIG

9The main consideration that the Tribunal must decide upon is whether the applicant’s injuries fall within the MIG.

10The 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.

11Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

12The Tribunal has found that chronic pain syndrome would remove an injured person from the MIG, as this diagnosis is not included in the definition of “minor injury” in s. 3(1) of the Schedule.

13I find that the applicant has failed to meet her onus of proving on a balance of probabilities⁴ that she suffers from chronic pain syndrome or physical injuries that remove her from the MIG. However, I do find that the applicant has shown a psychological impairment on a balance of probabilities that would take the applicant outside of the MIG limits.

Positions of the Parties

14The applicant has appealed that the injuries sustained from her motor vehicle accident are not minor. She has indicated that she suffers from ongoing psychological impairment including mild depressive disorder, flashbacks, nightmares, and driving phobia, which she submits has been confirmed through multiple clinical assessments. The applicant argues that she is also suffering from chronic pain as exhibited by her ongoing neck, shoulder, and back pain. The applicant submits that her psychological impairment and chronic pain should remove her from the minor injury guideline. She has submitted several treatment plans in dispute at the recommendation of her treating practitioners.

15The respondent challenged that any of the applicant’s injuries fall out of the minor injury guideline and argued they were soft tissue injuries and that any subsequent psychological diagnosis is only sequalae from the predominant injury. The respondent submits that the applicant has failed to prove on a balance of probabilities that her injuries are not minor as defined under s. 3(1) of the Schedule. Furthermore, it submits that the applicant has not received any diagnosis of chronic pain and that any ongoing pain that she is claiming, is again sequelae from the soft tissue injuries she sustained. The respondent submits that the applicant has resumed employment, resumed driving and seen only two practitioners since the date of loss and March 2021.

Physical Impairments and the MIG

16On June 13, 2019, the applicant was involved in a motor-vehicle accident. On the day of the accident, the applicant did not attend the hospital. The applicant was reporting of whiplash in the neck and back pain in lieu of any major injuries.

17The applicant did not seek medical attention until June 18, 2019 when she first consulted with the Total Recovery Rehab Centre. The applicant began physical therapy and in September 2019, Dr. Palantzas submitted the first OCF-18 for further chiropractic treatment. The applicant relies on this document to substantiate her physical impairments which include: decreased range of motion at the cervical, thoracic, lumbar spine, bilateral shoulders and wrist regions. Dr. Palantzas noted persistent headaches and dizziness that had become more intense and frequent since the accident. They noted sleep disturbances and anxiety.

18The applicant was reassessed by Dr. Palantzas in October 2019 and submitted another OCF-18 on October 23, 2019 for more chiropractic treatment. The applicant refers to Dr. Palantzas’ notes in the treatment plan which state that she continued to have decreased range of motion in the cervical, thoracic, lumbar spine and shoulder region. They describe persistent neurological symptoms in bilateral upper extremity with weakness and loss of strength. Dr. Palantzas noted headaches, difficulty standing, walking, and lifting, and inability to work and prescribed Tylenol 1000 mg for pain relief. The applicant highlights that the doctor noted that she was “not at a pre-accident state and needs continual uninterrupted therapy.”⁵

19The applicant refers to an exhaustive list of injury codes that Dr. Palantzas had noted under “injury and sequelae” in the OCF-18s. They include injury of muscle and tendon at neck level, wrist and hand level, shoulder and upper arm level, abdomen, lower back and pelvis as well as dislocation, sprain and strain of joints and ligaments of thorax, neck level, lumbar spine and pelvis, shoulder girdle, and wrist and hand level.

20The applicant also refers to Dr. Bruce Cook, psychologist, who noted in his psychological assessment report, dated March 12, 2021, that she was suffering from dull, aching constant pain. He noted that she appeared to be experiencing ongoing pain and somatic issues that was interfering with her return to pre-accident level of functioning. He concluded by diagnosing the applicant with “pain, not elsewhere classified.”⁶

21The respondent submits that the applicant has failed to meet her onus to establish her injuries and not minor injuries on a balance of probabilities. The respondent relies on the medical notes from Dr. Kris Cheng, a walk-in family physician, on May 28, 2020. In his medical notes, he notes that the applicant reported being involved in a vehicular accident in the previous year. The applicant reported no major injuries at the time but did suffer from whiplash and back pain. However, he notes that “since then, her physical injuries have resolved.”⁷

22The respondent contends that the applicant has not submitted any clinical notes or records to demonstrate that her injuries are outside of the MIG on a balance of probabilities. Instead, they argue that she has relied on two OCF-18s without any supporting documentation during her rehabilitation time with Total Recovery Rehab Centre. The respondent also submits that a psychological assessment with Dr. Cook did not properly assess the applicant for physical injuries and the psychologist is not qualified to express an opinion regarding physical impairments.

23I place more weight on the clinical notes of Dr. Cheng. It is understandable that the applicant did suffer from pain in the months following the accident and the OCF-18 notes from Dr. Palantzas corroborate that she was still dealing with pain four months after the accident. However, Dr. Cheng notes that the applicant self-reported on May 28, 2020 that her “physical injuries were resolved.”⁸

24In respect to Dr. Cook’s psychological assessment. I agree that a family physician’s medical notes would hold more weight than a psychologist’s when it comes to physical injuries. Both Dr. Cheng and Dr. Cook completed their assessment remotely and neither were able to physically examine the applicant. However, in both assessments, the applicant appears to either have downplayed her injuries or reported to the clinician that they have fully resolved.

25I note that even Dr. Cook’s assessment includes a section covering the applicant’s self-reported history of events following the accident. He writes that the applicant reported being seen by a walk-in physician a week after the accident with no diagnostic imaging or prescriptions ordered. Dr. Cook also writes that the applicant described her pain as “neck and shoulders feel tight, muscles in her body often feel tight... she will sometimes have neck or back pain… and sometimes having pain in the hand or foot.”⁹ None of these findings were made through specific physical assessment by Dr. Cook and are all based on the applicant’s own self-reporting.

26The applicant relies solely on Dr. Palantzas’ notes in two submitted OCF-18s and on Dr. Cook’s psychological assessment without any submitted clinical notes or records. There is equally no diagnostic imaging or any other medical documentation submitted to confirm the injuries that Dr. Palantzas has indicated in the OCF-18s. Based on the evidence and medical records before me, I am not satisfied this evidence of a physical impairment would remove the applicant from the MIG. I am persuaded that these physical injuries are a result of soft tissue sprain and strain or their sequelae which fall directly within the definition of a minor injury and are thus treatable within the confines of the MIG. Thus, any treatment plans related to her physical injuries are considered unreasonable and unnecessary.

Chronic Pain and the MIG

27The applicant did not claim of any pre-existing pain or chronic condition which would remove her from the MIG but does argue that she has suffered ongoing accident-related chronic pain.

28The applicant must demonstrate on a balance of probabilities that her functionality has been affected by the pain from the current injuries in order to be removed from the MIG. In this matter, I have not been provided with evidence that overwhelmingly indicates the applicant’s accident-related injuries have had a detrimental impact on her functionality. More is required to establish to what extent a chronic pain condition, be it syndrome or “chronicity of symptoms”, affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

29The Tribunal has repeatedly adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria described in the American Medical Association Guides (AMA Guides),¹⁰ which state that at least three of the following criteria must be met for a diagnosis:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

30The applicant is not required to satisfy these criteria, but they can provide helpful guidance as an interpretative tool for understanding how pain affects an individual’s functional capacity.

31I find that the applicant’s evidence fails to demonstrate that pain impacts her functionality. The applicant has not provided compelling medical evidence to establish that her pain resulted in a functional impairment. As stated previously, Dr. Cheng noted that physical injuries had resolved by May 28, 2020, nearly one year post-accident. According to Dr. Palantzas’ notes in an OCF-18 dated September 6, 2019, pain was treated with over-the-counter 500-1000mg Tylenol¹¹.

32In Dr. Cook’s assessment, the applicant reports being recommended to attend physiotherapy initially after the accident from a walk-in physician. There is no documentation to support this visit. She reported to Dr. Cook that she was no longer attending physiotherapy or any therapy on March 10, 2021. She also reported to Dr. Cook that she continues to manage her company back in China and “goes back to China every six months to manage some of her business affairs.”¹² She told Dr. Cook that she still helps out with cooking and did resume driving but due to personal circumstances, has “not driven for the past few months.”¹³

33The applicant has provided conflicting information, indicating to Dr. Palantzas that she was unable to participate in full work and to Dr. Cheng that she was unemployed as a result. The applicant could not have been employed in Canada due to her visitor visa, so this self-reporting appears misleading. This directly contradicts her reporting to Dr. Cook where she mentions no break in the ownership of her company and alternatively appears well enough to travel back to China every six months to manage her affairs. Furthermore, there is no information as to what the personal circumstances caused her to stop driving again, but Dr. Cook’s assessment does not attribute this to any injury. It is clear from both Dr. Cook and Dr. Cheng that the applicant resumed driving following the accident. The evidence points to the applicant not maintaining physiotherapy or chiropractic services, with no dependency on medication or others to function.

34The applicant relies heavily on Dr. Cook’s Pre-MVA functioning assessment. However, Dr. Cook makes no mention of what the applicant’s actual functioning was like prior to the accident. He noted that the applicant self-reports that she does not go to the gym or play badminton anymore, but there is no mention of why she cannot or chooses not to do these activities anymore. Similarly, he mentions that she is unable to do outdoor chores. But there is no evidence to show that she did these outdoor chores prior to her accident. The applicant also refers to the OCF-18s that she submitted, but there are no clinical notes, testing results, or records included that confirm any of the functional impairments that they claim.

35The applicant was never diagnosed with a chronic pain condition and as such, the applicant bears the onus to demonstrate that her functionality has been impacted beyond sequelae from her soft tissue injuries. I find that she has failed to do so. The applicant did not contest the AMA Guides criteria and in fact, filed no submissions for the hearing that established that she met three or more of the criteria to categorize her as having chronic pain. There is no evidence of any dependency on medication nor excessive dependence on family members or health care providers. The applicant has not withdrawn from work and I place significant weight on the fact that the applicant has been able to travel back to China every six months to maintain her business as indicative of her functional capability. The applicant did not have to withdraw from work and she was also able to return to a physical capacity to resume work.

36Based on the evidence provided by both parties, I find the applicant has failed to demonstrate on a balance of probabilities that any claim of chronic pain injuries fall beyond the treatment limits of the MIG. The applicant has not provided sufficient medical evidence to satisfy her onus that she meets the AMA criteria or that her ongoing pain has completely impaired her functionality, alternately I find based on the lack of evidence that the pain the applicant is experiencing is merely sequalae of her minor injuries.

Psychological Impairments and the MIG

37Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.” The applicant believes that her psychological impairments justify her removal from the MIG based on the opinions of the applicant’s family physician, psychologist, and consulting psychologist for the applicant’s October 9, 2019 OCF-18.

38The applicant refers to two OCF-18s from September 16 and October 23, 2019. Dr. Palantzas notes in the September OCF-18 that the applicant was limited by anxiety and attention deficit-post MVA and recommended psychological counselling for her anxiousness and emotional issues. Dr. Palantzas advised the applicant to seek “a referral to a qualified medical specialist.”¹⁴ In the October OCF-18, Dr. Palantzas noted anxiety and attention deficits. She added that she still found the applicant with sleep disturbances and concentration difficulties and recommended cognitive-behavioural therapy so as to not interfere with functional recovery.

39In an OCF-18 dated October 9, 2019, Dr. Sharleen McDowall, psychologist recommends a full psychological assessment for the applicant through Somatic Assessments & Treatment Clinic Inc. The treatment plan identifies specific phobias, nightmares, non-organic sleep disorders, irritability and anger and headaches under the injury and sequelae for the treatment plan.

40The OCF-18, however, only lists Dr. McDowall as a supervisor. It in fact notes that the applicant was directly assessed and interviewed by a registered social worker and psychotherapist with a masters degree in social work. No additional information was provided about the assessor’s credentials for conducting assessments and evaluative interviews for the purpose of clinical diagnosis.

41In the clinical opinion portion of this OCF-18, it reads that the applicant self-reported anxiety, depression, irritability and fear. They note that her clinical presentation is consistent with other individuals who have suffered post-accident psychological impairment. In the interviewer’s opinion her psychological challenges are affecting the applicant’s daily activities and abilities.

42The applicant also points to a May 28, 2020 doctor’s referral note from Dr. Cheng, a family physician, which notes that the applicant has been having symptoms consistent with post-traumatic stress disorder and a recommendation that the applicant “could benefit from psychotherapy or counselling.”¹⁵

43Dr. Cheng noted that the applicant reported general anxiety and tension when driving, with palpitations and restlessness. He noted that the applicant avoids driving but will drive when necessary. Applicant reported poor sleep with flashbacks and nightmares about the car accident, with trouble concentrating at work. The medical notes state that cognitive behavioural therapy, exercise and meditation were recommended to the applicant. Dr. Cheng noted that since the consultation was by teleconference, any physical exam was deferred due to COVID-19.¹⁶

44Finally, the applicant attended a psychological assessment by Dr. Cook on March 12, 2021 at Somatic Assessments and Treatment Clinic. This assessment took place nearly two years after the accident and there is no record of any psychotherapy, counselling, or treatment for the applicant’s psychological impairment between the accident and this assessment. Dr. Cook diagnosed her with mild depressive disorder and pain, not elsewhere classified.¹⁷

45The applicant reported to Dr. Cook that she never received any psychotherapeutic services or psychotropic medications prior to the accident. She described depression and anxiety which is exhibited by her decreased sleep around five hours a night, feelings of uselessness and a lack of motivation. The applicant disclosed that she has driven again, but still notices hypervigilance when in a motor vehicle, occasional nightmares of the accident, and “increased irritability and startle reaction.”¹⁸

46Dr. Cook assessed the applicant with the Personality Assessment Inventory. He did not note any elevations on the inventory and her clinical scales were in the normal range. He did note that her somatization scale was elevated which could suggest current somatic concerns. On the Beck Anxiety Inventory, the applicant scored in the minimally anxious range. On the Beck Depression Inventory, the applicant scored a “12,” which according to Dr. Cook suggests that she is likely “having a depressive experience that is likely impinging upon her life at the present time.”¹⁹ Finally, Dr. Cook scored the applicant on the pain patient profile and found her to present with average pain patient depression, pain patient anxiety, and pain patient somatization scores. These suggest that the applicant is having an average amount of depressive, anxiety and somatization symptoms as it relates to her pain experience.²⁰

47Dr. Cook concluded in his clinical opinion that the applicant is experiencing mild depressive symptoms currently. He expressed his professional opinion that the applicant “experiences significant impairments in her activities, including pain and psychological symptoms. Her current symptoms significantly interfere with her return to her full level of pre-accident level of functioning.” He recommends psychotherapy for the applicant moving forward to improve her psychosocial functioning and address psychological symptom, including cognitive behavioural therapy, anxiety management techniques, exposure therapy, and eye movement desensitization and reprocessing.²¹

48The respondent argues that any psychological symptoms are mere sequelae from the accident and should not bring the applicant outside of the MIG. The respondent does not present any alternative medical information or diagnoses but contends that based on the clinical notes provided by the applicant psychological injuries have not interfered with her ability to return to pre-accident functioning. It has been established that the applicant has resumed driving and continued employment, but these speak more to the applicant’s claim of chronic pain and its effect on her functionality. The respondent also draws attention to Dr. Cook’s assessment, which states that the applicant self-reported that before the accident, she denied “ever being depressed for longer than two weeks at a time.”²² This suggests that the applicant could have been suffering from some depression prior to the accident, but there is no additional medical documentation to support this.

49I find that Dr. Cook’s psychological assessment is uncontested. Though it comes roughly three years after the accident, it is clear that the accident has had an impact on the applicant’s psychological well-being. There is no evidence of a pre-existing psychological injury or impairment. A psychological assessment was reasonable and necessary to determine the extent of the applicant’s injuries and though Dr. Cook suggests that the psychological symptoms may be more mild, it does not detract from the fact that he finds the applicant with a psychological injury. I am persuaded that the evidence demonstrates the applicant is experiencing some psychological impairment as a result of the accident. Equally, even though the applicant has submitted little in corroborating medical documentation, the documentation that she has submitted accords with Dr. Cook’s conclusions.

50I find that the applicant has demonstrated that she has psychological injury/impairment as a result of the accident, and thus her injuries fall beyond the MIG limits.

51There are three treatment plans at issue:

a. An OCF-18 dated September 16, 2019 for chiropractic services proposed by Total Recovery Rehab Centre in the amount of $200;

b. an OCF-18 dated October 9, 2019 for a psychological assessment treatment proposed by Somatic Assessments & Treatment Clinic in the amount of $2,200; and,

c. an OCF-18 dated October 23, 2019 for further chiropractic services proposed by Total Recovery Rehab Centre in the amount of $4383.90.

52Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

53The applicant bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.²³

54With limited medical documentation, the applicant has submitted and relied upon the treatment plans themselves that the applicant is reporting pain relief and that the treatment plans are reasonable and necessary. However, the treatment plan on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the treatment plan. In the present case, the applicant does not direct me to any evidence in support of the treatment as any physical injuries appear to be minor in nature and sequelae from the accident.

55The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary. A treatment plan without more, is not enough to establish entitlement to the treatment.²⁴ As a result, I find that the applicant has not met her burden to prove on a balance of probabilities that OCF-18s from September 16 and October 23, 2019 are reasonable and necessary.

56However, I have found that the applicant, on a balance of probabilities, has suffered from psychological impairment taking her outside of the MIG. Thus, I find that the psychological assessment OCF-18 from October 9, 2019 was reasonable in nature and necessary and could have prevented the applicant from having to complete the psychological assessment in 2021.

57The OCF-18 indicates that the applicant would have gone through “a full psychological assessment battery including psychometric testing and a thorough-in-depth clinical interview to determine her clinical diagnosis and psychological treatment needs.”²⁵ As I have found that Dr. Cook’s submissions on the applicant’s psychological state to be uncontested, it is reasonable for me to expect that his diagnosis of mild depressive order or some diagnosis would have been discovered in 2019 when the applicant had pursued an assessment with Dr. McDowall and could have pursued treatment accordingly. From the evidence submitted, an assessment that the applicant could have pursued nearly two years prior to receiving a diagnosis for a psychological impairment presents as both reasonable and necessary to me.

58Though I have found the assessment to be reasonable and necessary, the applicant must show that she is entitled to the fees in the treatment plan namely, “documentation, support activity for claim form.”²⁶ The applicant has been unable to demonstrate what support activities for claim form entailed and why this is an additional charge above the assessment charge. The assessors should be able to complete documentation and support the claim within the $2,000 payment limit established by the Schedule. Section 25(5) specifically states that “an insurer shall not pay more than $2,000 in respect of fees and expenses for conducting any one assessment.”²⁷ The $200.00 charge for documentation from the October 9, 2019 OCF-18, does not present as reasonable and necessary.

59Based on my determination, the applicant will be entitled to $2000.00 towards the October 9, 2019 OCF-18.

Award

60Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

61It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under O. Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

62There is no other evidence before me that supports a finding that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate and, as such, the applicant is not entitled to an award under Regulation 664.

Interest

63The applicant is entitled to interest in accordance with s. 51 of the Schedule.

CONCLUSION

64For the reasons outlined above, I find that:

i. The applicant has not met her burden of proving that she sustained an injury that is not included in the minor injury definition.;

ii. The applicant is not entitled to the March 5, 2019 or September 1, 2020 OCF-18.

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 52 of the Schedule.

Released: September 21, 2022

__________________________

Gregory Kung

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Applicant Submissions, OCF-18 October 23, 2019, Part 9(b)
6. 6Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 9
7. 7Applicant Submissions, CNRs of Dr. Kris Cheng, May 28, 2020, Page 1
8. 8Applicant Submissions, CNRs of Dr. Kris Cheng, May 28, 2020, Page 1
9. 9Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 7
10. 10American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
11. 11Applicant Submissions, OCF-18 October 23, 2019, Part 8(b)
12. 12Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 3
13. 13Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 5
14. 14Applicant Submissions, OCF-18 September 6, 2019, Part 13 Additional Comments
15. 15Applicant Submissions, CNRs of Dr. Kris Cheng, Page 2
16. 16Applicant Submissions, CNRs of Dr. Kris Cheng, May 28, 2020, Page 1
17. 17Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 9
18. 18Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 6
19. 19Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 8
20. 20Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 7
21. 21Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 9
22. 22Applicant Submissions, Psychological Assessment Report, Dr. Bruce Cook, March 12, 2021, Page 3
23. 23Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
24. 2417-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.
25. 25Applicant Submissions, OCF-18 October 9, 2019, Part 13 Additional Comments
26. 26Applicant Submissions, OCF-18 October 9, 2019, Part 12
27. 27Section 25 5(a) of the Schedule