Lee v. Cooperators General Insurance Co., 2023 CanLII 113714

Citation: Lee v. Cooperators General Insurance Co., 2023 ONLAT 21-012663/AABS

Licence Appeal Tribunal File Number: 21-012663/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:

Young Ja Kim Lee

Applicant

and

Cooperators General Insurance Co.

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Jae Hyon Cho, Counsel

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1Young Ja Kim Lee, the applicant, was involved in an automobile accident on October 2, 2019, 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 respondent, Cooperators General Insurance Co., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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 Minor Injury Guideline limit?

ii. Is the applicant entitled to a medical benefit in the amount of $1,295.77 for physiotherapy services, proposed by North York Physiotherapy Clinic in a treatment plan dated January 30, 2020?

iii. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 16, 2020 to September 29, 2021?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

v. The applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG;

vi. The applicant is not entitled to the treatment plan in dispute, or interest; and

vii. The applicant is not entitled to a non-earner benefit for the period in dispute.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) 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.”

5An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant. The applicant has not specified on which ground her accident-related impairments fall outside of the definition of a minor injury.

The applicant has not established that her accident-related impairments warrant removal from the MIG

6The applicant has provided limited medical evidence of non-minor accident-related impairments.

7The medical record establishes that with respect to accident-related physical impairments, the applicant has only been diagnosed with whiplash associated disorder (WAD-2) and soft tissue strains and sprains, all of which fall squarely within the definition of a “minor injury”. Diagnostic imaging of the neck conducted soon after the accident, was normal. The applicant points to her attendance at the emergency department with chest pain and left-handed pain and numbness, a few weeks after the accident. However, the hospital records indicate that these symptoms were not accident-related, but due to suspected shingles. The applicant has also led evidence of cardiac and lung impairments but has not provided any evidence or medical opinion that these impairments were accident-related.

8The respondent’s physiatry insurer’s examination (“IE”) assessor Dr. Anna Czok found no evidence of an ongoing musculoskeletal impairment and diagnosed the applicant with resolved cervical and lumbar sprains/strains. The applicant has not led any medical evidence to refute Dr. Czok’s findings.

9The applicant also submits that post-accident, she has been suffering from “constant lower backpain and stiffness”. From this, I infer that she is arguing that she should be removed from the MIG on the basis of chronic pain. However, the medical record does not establish ongoing pain complaints post-accident. The clinical notes and records (“CNRs”) of the applicant’s family physician, Dr. Matthew Kim, indicate only one accident-related visit six days post-accident, where the applicant complained of neck pain and headaches that she rated 2/10. The applicant does not direct me to any additional CNR entry with respect to neck pain complaints. The applicant further does not direct me to any CNR entry where back pain is discussed.

10The applicant has not led any evidence of a chronic pain diagnosis, referral for chronic pain treatment or evidence that prescription pain medication was prescribed for ongoing pain complaints. Finally, the applicant has not led sufficient evidence that she suffers from functional limitations due to chronic pain. I note that the emergency room record from the applicant’s October 30, 2019 visit for unrelated chest pain, noted that “she is very functionally active and still does hiking, without limitations”. As such, I find that the applicant has not met her onus of establishing pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG.

11The applicant has further not provided sufficient evidence to establish a pre-existing condition, documented by a medical practitioner, which precludes her ability to achieve maximum medical recovery from any accident-related minor injury if she were kept in the MIG. The applicant submits that her pre-existing cardiovascular condition and diabetes are barriers to recovery under the MIG. However, the applicant has not provided sufficient medical evidence from a treating medical practitioner that opines that these pre-accident conditions have impacted on her ability to achieve maximum medical recovery under the MIG, as required by s. 18(2) of the Schedule.

12Rather, Dr. Czok considered the applicant’s pre-accident medical conditions and opined that the applicant’s past medical history would not prevent maximal recovery within the MIG. The applicant does not direct me to any medical evidence to rebut Dr. Czok’s opinion. As such, I find that the applicant has not met her onus to be removed from the MIG.

The applicant is not entitled to the disputed treatment plan for physiotherapy

13The respondent has led evidence that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that she should be removed from the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.

The applicant has not proven her entitlement to non-earner benefits

14I find that the applicant has not established entitlement to non-earner benefits (“NEBs”).

15Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

16I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

17While the applicant has self-reported that she suffers from restrictions to some pre-accident activities, she has not established that she is continuously prevented from engaging in substantially all of her pre-accident activities. The applicant concedes that she is independent with respect to personal care tasks, has returned to cooking, but submits that she has stopped cleaning and driving.

18However, the applicant has not provided any additional detail or tendered any evidence of the specific pre-accident tasks she is unable to complete, or demonstrated how her ability to engage in these activities has changed as a result of the accident. For example, the applicant provides the general assertion that she is unable to “clean”, but a CNR entry of Dr. Kim post-accident establishes a bladder complaint after gardening, indicating a resumption of some housekeeping activities. The applicant also reported that post-accident she walked from 1 to 1.5 hours every morning, and I note the hospital record notation that the applicant is still “very functionally active and still does hiking, without limitations”.

19The applicant further does not direct me to any medical opinion or medical evidence that she suffers a complete inability to carry on a normal life. Although she submits two OCF-3s which note such restrictions, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. Rather, additional objective medical evidence is required. The CNRs of Dr. Kim do not indicate any post-accident restrictions to former activities, ongoing impairments or pain complaints. The respondent’s IE assessor Dr. Czok did not find any musculoskeletal impairment and found that the applicant did not suffer a complete inability to lead a normal life. The applicant has not led medical evidence to refute Dr. Czok’s findings. Without such medical evidence, I find that the applicant has not met her onus to prove that she is continuously prevented from engaging in substantially all of her pre-accident activities.

Interest

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

ORDER

21For the reasons outlined above, I find that:

i. The applicant remains in the MIG;

ii. The applicant is not entitled the treatment plan in dispute, or interest; and

iii. The applicant is not entitled to a non-earner benefit for the period in dispute.

22The application is dismissed.