DECISION
Licence Appeal Tribunal File Number: 20-013305/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:
Jin Chai Cai
Applicant
and
Allstate Canada
Respondent
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Philip Kai Kwong Yeung, Paralegal
For the Respondent: Danielle Ralph, Counsel
HEARD: By Way of Written Submission
BACKGROUND
1The applicant was involved in an automobile accident on July 18, 2019 and sought benefits from Allstate Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).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:
a. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?2
b. Is the applicant entitled to a medical benefit in the amount of $4840.08 for physiotherapy provided by Total Recovery Rehab Centre in a treatment plan (“OCF-18”) dated December 13, 2019?
c. Is the applicant entitled to $82.16 for medication dated October 30, 2019?
d. Is the applicant entitled to a medical benefit in the amount of $2200.00 for a psychological assessment provided by Somatic Assessments and Treatment Clinic in an OCF-18 dated November 26, 2019?
e. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Regulation 664?
f. Is the applicant entitled to interest on any overdue payment of benefits?
result
3I find that:
a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3500.00 limit of the MIG;
b. The treatment plans in dispute are not payable;
c. The applicant is not entitled to an award; and
d. The applicant is not entitled to interest.
analysis
4The applicant was in an automobile accident, the air bags did not deploy, and she did not sustain a head injury or lose consciousness.3 Emergency personnel did not attend the accident, and she did not go to the hospital.
5For the reasons outlined below, I find that the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the MIG.
Applicability of the Minor Injury Guideline (“MIG”)
6The 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.”
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
8An applicant may receive payment for treatment beyond the $3500.00 limit 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 an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
9It is the applicant’s burden to establish entitlement to coverage beyond the $3500.00 cap on a balance of probabilities.4
Did the applicant suffer physical injuries that warrant the removal from the MIG?
10I find that the evidence establishes that the applicant’s physical injuries fall within the definition of a minor injury for the following reasons:
11The applicant submits that her accident-related pain and discomfort require treatment beyond the MIG. In support of her position that her physical injuries are not minor, the applicant relies on the clinical notes and records (“CNR”s) of Dr. Patrick Chiu, family physician, and Dr. Peter Pang, family physician.
12In Dr. Chiu’s CNR dated July 26, 2019, the applicant reported headaches, dizziness and neck pain. Dr. Chiu diagnosed the applicant5 with whiplash, and prescribed Mobicox and Amitriptyline as well as a referral to physiotherapy and massage therapy.
13The applicant also relies on the CNRs of Dr. Peter Pang, which document the applicant’s headaches, and dizziness.6
14The respondent submits that there was no evidence supporting that the applicant has injuries beyond those that would be considered to be “minor”. The respondent notes that the applicant did not attend the hospital after the accident and 8 days post-accident when the applicant saw Dr. Chiu, where the doctor diagnosed her with whiplash, which is considered to be a minor injury.
15After considering the evidence and submissions of the parties, I find that the applicant has not met her evidentiary onus. Though I place weight upon the conclusion rendered by Dr. Chiu, who concluded that the applicant suffered a minor strain type injury, I note that at no point, did Dr. Chiu nor Dr. Pang refer the applicant to any specialists for investigations or treatment for physical injuries or diagnose the applicant with non-minor physical injuries as a result of her accident.
16Lastly, after considering the evidence, I am persuaded further that the applicant did not mention any accident-related complaints to Dr. Chiu or Dr. Pang after July 2019, 2020, and 2021. Taken together, I find that the applicant has not demonstrated that her accident-related injuries warrant a removal from the MIG.
Did the applicant suffer psychological impairments that justify the removal from the MIG?
17An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, on the basis that psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.
18In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments. I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.
19For the reasons that follow, I find that the applicant did not sustain psychological impairments that would remove her from the MIG:
20The applicant relies on a June 18, 2021, psychological assessment by Dr. Sharleen McDowall, psychologist, who diagnosed the applicant with major depressive disorder, anxious distress, and specific phobia (travel).7 The applicant also relies on a July 26, 2019, Treatment Confirmation Form (“OCF-23”) by Dr. Georgia Palantzas, chiropractor, that notes psychological symptoms of the applicant, including nonorganic sleep disorders, symptoms and signs involving emotional state, state of emotional shock and stress, nervousness and other symptoms and signs involving cognitive functions and awareness.8
21The respondent argues that it is beyond the scope of practice for a chiropractor to opine the applicant’s psychological symptoms.
22The respondent provides that the Tribunal has previously concluded that psychological reports should be given little weight in certain circumstances.9
23The respondent also argues that the psychological assessment should be given little weight for numerous reasons, including: no validity testing was completed, no medical documentation was referenced suggesting that the assessment does not address the fact that there were no reports of any psychological concerns by the applicant to any doctor10 post-accident and the assessment is based on the applicant’s self reporting.
24The respondent did not conduct an insurer’s examination.
25After considering the evidence and submissions of the parties, I found that the applicant has not met her evidentiary onus.
26I place little weight on the OCF-23 completed by Dr. Palantzas, as I find that diagnosing psychological symptoms beyond the scope of a practice of a chiropractor.
27I am persuaded by the respondent’s argument, while I respect the conclusions of Dr. McDowall, I find that there is no contemporaneous medical documentation from any of the applicant’s treating physicians to support the diagnosis in the report. The CNRs of Dr. Chiu and Dr. Pang, make no reference to psychological concerns.
28Taken together, I find no compelling evidence to demonstrate that the applicant suffered a psychological injury requiring treatment outside of the MIG.
Does the applicant have pre-existing injuries?
29I find that the applicant has not met her onus to demonstrate that she has pre-existing injuries that would preclude her recovery if limited to the MIG.
30In McCurdy v. Allstate Insurance Company of Canada11 Vice-Chair Boyce confirmed an insured may be removed from the MIG if, under s 18(2), they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.
31The applicant relies on the comment in the December 13, 2019, OCF-18 completed by Mr. Ahmed Afifi, physiotherapist, that refers to her previous automobile accident on January 30, 2015. Mr. Afifi states that the applicant never fully recovered from her previous injuries. The specifics of the applicants’ previous injuries were not included in the OCF-18.
32The respondent submits that without compelling and documented medical evidence that the applicant has a pre-existing condition precluding recovery if she is kept within the MIG, the applicant has not satisfied her onus under s. 18(2).
33After considering the evidence and submissions of the parties, I find that the applicant has not met her evidentiary onus.
34The CNRs of Dr. Chiu and Dr. Pang do not substantiate or corroborate the comments made by Mr. Afifi in the OCF-18. Moreover, the OCF-18 is silent on any pre-existing condition that would prevent the applicant from reaching maximal recovery from the accident-related injuries if confined to the MIG. The only complaints brought forward by the applicant in the year prior to the automobile accident were her headaches.
35I find that there is no compelling evidence that the applicant’s headaches would prevent her from reaching maximal recovery if limited to the MIG.
Chronic Pain
36The applicant has not met her evidentiary onus to with respect to her allegation of having chronic pain requiring removal from the MIG.
37For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.
38The applicant did not submit specific evidence to support a chronic pain argument.
39The respondent submits that after the automobile accident on July 26, 2019, applicant returned to work and did not mention any accident-related complaints to Dr. Chiu for the remainder of 2019, and throughout 2020, and 2021.
40I am persuaded by the evidence submitted by the respondent with respect to the applicant not meeting her evidentiary burden. There is no evidence in the CNRs submitted that any examination was ever conducted with regard to chronic pain nor was she referred by her family physician to a specialist.
41In addition, the applicant also did not refer to the six criteria laid out in the American Medical Association Guides (“AMA Guides”).12 The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims.
42For all the above reasons, the applicant has not met her onus in proving on a balance of probabilities that her accident impairments do not fit within the MIG.
THE DISPUTED TREATMENT PLANS
43The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG’s limits. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
AWARD
44I find no evidence showing that any benefits were unreasonably withheld or that payment went overdue. The applicant is not entitled to an award under section 10 of Regulation 664.
INTEREST
45Given that there are no overdue payments of benefits, the applicant is not entitled to interest under s. 51 of the Schedule.
ORDER
46The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3500 limit of the MIG;
ii. The treatment plans in dispute are not payable;
iii. The applicant is not entitled to an award; and
iv. The applicant is not entitled to interest.
Released: October 11, 2022
__________________________
Monica Ciriello
Vice-Chair
Footnotes
- O. Reg. 34/10 as amended.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Initial clinical notes, Dr. Chiu, dated July 24, 2019.
- Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
- CNR, Dr. Chui, dated July 26, 2019.
- CNR, Dr. Pang, dated June 17, 2021.
- Psychological assessment report dated June 20, 2021.
- OCF-23, dated July 26, 2019.
- Barroilhet v. Aviva General Insurance Company, 2021 CanLII 43539 (ON LAT) 20-002626/AABS at para.19.
- Dr Chiu and Dr. Pang.
- 2021 CanLII 76572 (ON LAT) 20-000935/AABS at para.4.
- American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.