Lin v. The Co-operators General Insurance Company, 2023 CanLII 107261

Citation: Lin v. The Co-operators General Insurance Company, 2023 ONLAT 21-015203/AABS

Licence Appeal Tribunal File Number: 21-015203/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:

Wen Di Lin

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Yu Denise Jiang, Paralegal

For the Respondent: Amanda M. Lennox, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Wen Di Lin (the “applicant”) was involved in an automobile accident on May 18, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by The Co-operators General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal- Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
2. Is the applicant entitled to $4,115.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan (“OCF-18”) submitted on June 30, 2021, and denied on October 28, 2021?
3. Is the applicant entitled to $3,989.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in an OCF-18, submitted on July 7, 2021, and denied on October 28, 2021?
4. Is the applicant entitled to the costs of assessments proposed by Somatic Assessments and Treatment Centre, as follows: (i) $2,200.00 for a psychological assessment, in an OCF-18 dated May 28, 2021, and denied on June 11, 2021; and (ii) $2,200.00 for an In-Home Assessment, in an OCF-18 dated May 20, 2021, and denied on October 28, 2021?
5. Is the respondent liable to pay an award pursuant to section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor, and therefore subject to the treatment limits of the MIG; ii. I further find that the applicant is not entitled to any of the disputed OCF-18s as they propose treatment outside of the MIG; iii. As no benefits are owing, no interest is payable; and iv. The applicant is also not entitled to an award pursuant to section 10 of Regulation 664.

ANALYSIS

The Minor Injury Guideline

4Section 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.”

5Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical, and rehabilitation benefits payable for any one accident.

6An insured person may also be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that he should be removed from the MIG because he has psychological impairments and chronic pain that effect his daily activities. The applicant further submitted that Dr. Afifi, physiotherapist, noted that he suffered severe damage to the right lower rib cage area with possible fractures of the right lower ribs and possible damage to internal organs.

8The respondent submits that the applicant’s injuries are clearly confined to the MIG.

The applicant has not established chronic pain warranting removal from the MIG

9I find that the applicant has not met his burden of proof that he suffers from a chronic pain condition.

10The applicant submits that he sustained soft tissue injuries to his back, neck, ribs, and bilateral shoulders, from this accident, which did not resolve in the usual healing time seen with these type of injuries. As such, the applicant submits that he has chronic pain. To support this position, the applicant relies on four OCF-18s dated May 19, 2021, May 21, 2021, May 28, 2021, July 21, 2021, and a section 25 In-Home Assessment completed by Mr. Wong, occupational therapist (“OT”).

11The respondent submits that the applicant sustained minor soft tissue injuries to his neck, back, shoulders, and right ribs. The respondent relies on the section 44 physiatry assessment, completed by Dr. Williams, physiatrist.

12None of the applicant’s doctors have diagnosed chronic pain. While a diagnosis of chronic pain syndrome is not required, the presence of intermittent pain is not enough to warrant removal from the MIG. There must be evidence of severe or functionally disabling pain that is consistent and that affects day-to-day or work function, which the applicant has failed to establish for the reasons that will follow below. As a result, I conclude that the applicant does not suffer from accident-related chronic pain.

13I do not see that the medical evidence of the applicant’s family physician, Dr. Dong, supports a finding of chronic pain. On September 15, 2021, the applicant saw Dr. Dong for the first time about this accident. Dr. Dong noted in his records that he last spoke to the applicant prior to the accident and has not been in contact with the applicant since the accident occurred. As such, Dr. Dong concluded that he could not comment on the applicant’s status. Other than this one entry, the applicant has not referred me to any other entries where he complained of accident-related impairments to Dr. Dong. Nor, has the applicant referred me to any evidence that demonstrates that he was diagnosed with chronic pain, prescribed pain medicine, or referred to a chronic pain specialist by Dr. Dong.

14The applicant relies on the OCF-18s, dated May 19, 2021, May 21, 2021, May 28, 2021, and July 21, 2021, completed by Dr. Afifi and Dr. McDowall, psychologist, to support that he has functional impairments as a result of this accident. I place little weight on these OCF-18s, as the records of Dr. Dong do not support that the applicant has ongoing pain which would result in these functional limitations, as he has only seen Dr. Dong once in relation to this accident.

15While I acknowledge that the applicant reported functional limitations to his social life, personal care tasks, and his pre-accident employment, to Mr. Wong, OT, the In-Home Assessment was completed by Mr. Wong, only three days following the accident. Further, the applicant advised Dr. Biswas, psychologist, and Dr. Williams on October 18, 2021, that he was independent with his personal care tasks, housekeeping tasks, childcare tasks, that he had returned to his job in August of 2021, and that the accident had no significant changes to his social and recreational activities. Given the applicant’s described level of function, I am not satisfied that his pain caused a functional impairment. I acknowledge that the applicant advised Dr. Biswas that he had not returned to working his pre-accident hours and duties. The applicant also advised Dr. Williams, that he had not resumed his pre-accident road trips. However, he has failed to demonstrate that this is detrimental to his overall functionality, as he has returned to the vast majority of his daily activities.

16In addition, the applicant was inconsistent in his self-reporting with respect to the impact of this accident on his occupation. The applicant advised Dr. Biswas that he had not returned to his pre-accident hours and duties, but he advised Dr. Williams that he had returned to his pre-accident hours and duties. The applicant has not produced an employment file or any other evidence that would demonstrate whether this accident had an impact on his occupation.

17Accordingly, and for the reasons described above, I find that the applicant has not established that he suffers from chronic pain with a functional impairment that would warrant removal from the MIG.

The applicant does not suffer from psychological injuries which would remove him from the MIG

18I find that the applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment that will remove him from the MIG.

19A psychological impairment, if established, may fall outside the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include accident-related psychological impairments.

20The applicant submits that he has psychological impairments following this accident that effect his ability to complete his daily activities.

21The respondent submits that the applicant did not report any psychological symptoms to Dr. Dong and relies on a section 44 psychological assessment completed by Dr. Biswas, dated October 18, 2021.

22I find that the applicant has not demonstrated that he suffers from a psychological impairment that would remove him from the MIG for the following reasons.

23The Disability Certificate (“OCF-3”) completed by Dr. Afifi, dated May 19, 2021, listed the following psychological conditions/impairments: a sleep disorder, insomnia, malaise/fatigue, stress (not elsewhere classified), unhappiness, anxious (avoidant) personality disorder, and nervousness. I am assigning less weight to this document because psychological conditions are outside of the purview of a physiotherapist.

24Further, while I acknowledge that the applicant self-reported to Mr. Wong that he has the following psychological symptoms: difficulty sleeping, difficulty breathing, anxiety, sadness, depression, and nightmares, the clinical notes and records of Dr. Dong did not refer to any psychological issues. If the applicant were experiencing psychological issues, it raises the question why these issues were not discussed with Dr. Dong.

25Instead, the applicant relies on a pre-screen interview dated May 28, 2021, which was completed by Ms. Fang, social worker under the supervision of Dr. McDowall, psychologist, to support that he has psychological impairments from this accident. I place little weight on this report for the following reasons. Firstly, the interview appears to have been conducted by Ms. Fang, and there is no evidence that Dr. McDowall had any involvement with the applicant. Secondly, no psychological diagnosis was rendered, and no psychological testing was conducted. Thirdly, Ms. Fang and Dr. McDowall did not review any other medical evidence for the applicant when preparing the report and relied entirely on the applicant’s self-reporting.

26I prefer the section 44 report of Dr. Biswas, over the evidence that the applicant submitted. Firstly, Dr. Biswas, is a psychologist and directly met with the applicant, in contrast, it is unclear whether Dr. McDowall spoke with the applicant for the pre-screen interview. Secondly, Dr. Biswas’s opinion that the applicant did not fulfil any psychological diagnostic conditions as a result of the accident is more consistent with the other evidence before me, such as the lack of psychological complaints to Dr. Dong.

27Thirdly, Dr. Biswas completed a series of psychological testing, unlike Ms. Fang/Dr. McDowall, which included the: Beck Depression Inventory-II (“BDI-II”), The Beck Anxiety Inventory (“BAI”), and the Millon Clinical Multi Axial Inventory-III (MCMI-III). The BDI-II and BAI, which are self-reporting measures to test depression and anxiety, revealed that the applicant’s scores were in the mild range. Further, the MCMI-III, is a true or false test to provide an objective representation of response style, clinical presentation, and personality patterns. The results of the MCMI-III revealed that the applicant’s profile was skewed towards symptom exaggeration and thus the results should be interpreted with caution. Dr. Biswas concluded that the psychological symptoms expressed by the applicant: low energy, reduced sleep, occasional low mood and irritability, are all subclinical in nature and did not signify the presence of any significant depression or anxiety.

28Based on the totality of the evidence, I find that the applicant has failed to demonstrate that he suffers from a psychological impairment from this accident.

The applicant has failed to establish that he has a rib fracture/organ damage from this accident

29I find that the applicant has failed to demonstrate that he has a rib fracture or organ damage as a result of the accident that would warrant removal from the MIG.

30The applicant submitted that he suffered severe damage to the right lower rib cage area with possible fractures of the right lower ribs and possible damage to internal organs.

31The respondent submits that the applicant has failed to submit evidence that demonstrates that he suffered rib fractures from the accident.

32I agree with the respondent, the applicant has failed to refer me to objective evidence that demonstrates that he sustained a rib fracture or organ damage from this accident. On May 18, 2021, an x-ray of the ribs revealed no rib fractures, and no reference was made to any organ damage.

33I place little weight on the OCF-3 completed by Dr. Afifi, where he diagnosed the applicant with rib fractures, as it does not appear that he reviewed the x-ray, dated May 18, 2021. This x-ray would have shown Dr. Afifi that the applicant sustained no rib fractures from this accident. Further, the applicant has not referred me to any subsequent diagnostic imaging that shows he has a fracture in his ribs or any organ damage from this accident.

34As such, I find that the applicant has not discharged his evidentiary onus to demonstrate that he should be removed from the MIG on the basis of any rib fractures or organ damage.

MIG not Exhausted/Treatment Plans

35The parties did not make any submissions regarding whether the MIG has been exhausted. It is unclear how much is remaining under the MIG.

36All the OCF-18s in dispute propose treatment outside of the MIG. All the OCF-18s have the “No” box at the bottom of page two of each form checked, denoting that the treatment recommended therein was for an impairment that was not predominantly a minor injury. Therefore, the applicant’s entitlement to the benefits in these plans is contingent on a finding that his injuries are not included within the minor injury definition in the Schedule. As I have determined below that the applicant’s injuries are within the MIG, I find that the applicant is not entitled to any of the proposed OCF-18s.

37The applicant appears to submit that the respondent’s denial letters are non-compliant with section 38(8) of the Schedule, since the respondent did not consider any “independent medical opinion”, and as such the denial letters failed to provide a medical reason for the denial.

38The respondent submits that the applicant has made a blanket allegation and that it was compliant with section 38(8) of the Schedule, as the denial letters provided medical and all other reasons for denying the OCF-18s in dispute.

39The applicant provided no specific submissions as to which denial letters were non-compliant and what independent medical evidence was not considered by the respondent in reaching its denials of the OCF-18s. Further, the applicant did not point me to any evidence to support his submissions. The applicant had a further opportunity to address this in his reply submissions but chose not to do so.

40As a result, I find that the applicant has not established any failure by the respondent to comply with section 38(8) of the Schedule.

Interest

41As no benefits are payable, no interest is payable.

The Applicant is not entitled to an Award pursuant to section 10 of Regulation 664

42The applicant seeks an award and interest pursuant to section 10 of Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant. The respondent submits that the applicant has failed to demonstrate that its conduct rose to a level that was: excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

43As the applicant has been found to have sustained a minor injury and is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.

ORDER

44The applicant sustained predominantly minor injuries as a result of the accident. He remains subject to the MIG and its $3,500.00 limit. As the applicant remains within the MIG and its $3,500 limit, and all the disputed OCF-18s propose treatment outside of the MIG, he is not entitled to the plans in dispute, nor interest. The applicant is also not entitled to an award pursuant to section 10 of Regulation 664.

45As such, the application is dismissed.