Chen v. The Co-operators, 2023 CanLII 1448

Licence Appeal Tribunal

Citation: Chen v. The Co-operators, 2023 ONLAT 20-012408/AABS Licence Appeal Tribunal File Number: 20-012408/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:

Xue Yun Chen Applicant

v.

The Co-operators Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Julianne Brimfield, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Xue Yun Chen (the “applicant”) was involved in an automobile accident on April 21, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by the Co-operators (“the respondent”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are agreed to be in dispute:

1. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $376.92 per week from April 29, 2019 to date and ongoing?
2. Are the applicant’s injuries predominantly minor as defined in the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (the “MIG”)?
3. Is the applicant entitled to $2,200.00 for a psychological assessment in a treatment plan from Somatic Assessments and Treatment Clinic dated August 8, 2019?
4. Is the applicant entitled to $4,115.12 for physiotherapy services in a treatment plan from Total Recovery Rehab Centre dated January 15, 2020?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant has not met her burden of proving her initial entitlement to IRBs within 104 weeks of the accident, as she has not proven that she is suffering from a substantial inability to perform the essential tasks of her pre-accident employment. As a result, she is not entitled to IRBs.

4I find that the applicant sustained an injury that is outside the definition of minor injury as outlined in s. 3 of the Schedule.

5I find that the applicant is entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment plan from Somatic Assessments and Treatment Clinic dated August 8, 2019, plus interest.

6I find that the applicant is not entitled to $4,115.12 for physiotherapy services in a treatment plan from Total Recovery Rehab Centre dated January 15, 2020.

BACKGROUND

7The applicant was the passenger in a vehicle during a collision. According to the applicant, the vehicle in which she was riding was struck on the left side by another vehicle, causing her to hit her head against the interior of the car.² The applicant submits that she experiences pain in her neck, shoulders, and back, along with headaches, dizziness, and psychological symptoms, as a result of the accident.

8The applicant claims that she is entitled to IRBs because she suffered a substantial inability to perform the essential tasks of her pre-accident employment within 104 weeks of the accident. In addition, she claims that she sustained non-minor injuries and that she is entitled to two treatment plans in dispute and interest on any overdue payment of benefits.

9The respondent submits that the applicant has not provided sufficient medical evidence to prove her claim for IRBs. Further, the respondent submits that the applicant has not met her burden of demonstrating that she sustained anything more than a minor injury. As a result, she should not be entitled to the plans in dispute, as they propose treatment outside of the MIG and the funding limit of $3,500.00. As the respondent denies that any benefits are overdue, the respondent holds the opinion that no interest is owed.

ANALYSIS

Is the Applicant Entitled to an IRB of $376.92 Per Week?

10The test for eligibility to receive IRBs within the first 104 weeks of an accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident.

11The applicant bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period and amount claimed.

12I find that the applicant has not met her burden to demonstrate that she suffers a substantial inability to complete the essential tasks of her employment. There is insufficient medical documentation to support her claim for IRBs.

13The treatment and assessment plans before me are uncompelling evidence demonstrating that the applicant suffers a substantial inability to complete her essential work tasks. A great deal of the applicant’s medical evidence has been provided in the treatment plans, along with documents like the Disability Certificate (“OCF-3”). While what is noted in OCF-18s and OCF-3s can be helpful in determining an applicant’s medical status, as well as when assessing the reasonable and necessary nature of an applicant’s treatment, these notes are not a substitute for more thorough medical assessments.

14With regard to the applicant’s pre-accident employment, she relies on an Employer’s Confirmation Form (“OCF-2”) that confirms her employment as a nail specialist, but is incomplete in some respects.³ The form notes gross employment earnings for 2018, and that the applicant’s last day worked was April 21, 2019.⁴ The form also cites that the applicant was self-employed for all of 2018.⁵ It is signed by a person identified only as “Wendy,” listed as the manager of the nail salon/spa, while the name of the employer is illegible.⁶ The OCF-2 includes no information on the applicant’s injuries or impairments and fails to list her essential job tasks, despite including a prompt for that information (this section of the form is blank).

15I assign little weight to the OCF-3 of Qi Xu, physiotherapist, of Total Recovery Rehab Centre, dated May 3, 2019, as there is little relevant information in it relating to an IRB claim.⁷ While the form indicates that the applicant was substantially unable to perform the essential tasks of her employment at the time of the accident and within 104 weeks of the accident, there is little supporting evidence. A list of injuries and sequelae—including back pain making it impossible for the applicant to sit, stand, or walk for prolonged periods of time; neck pain and radiculopathy limiting the ability for the applicant to carry and lift objects; and whiplash with headache and dizziness⁸—is not enough on its own to meet the IRB test pursuant to the Schedule.

16As a result, the OCF-3 is unpersuasive. It does not include any information on how or why the applicant cannot perform the essential tasks of her job. Aside from a brief notation about how the applicant needs to keep her head down at work to do nails (“Job is nail polisher, requires frequently lower head”⁹), there is no analysis or objective data regarding the extent of the applicant’s impairments and how they specifically relate to her employment.

17The clinical notes and records (“CNRs”) of Dr. Georgia Palantzas, chiropractor, who assessed the applicant on September 25, 2019 and completed a treatment plan not in dispute here for chiropractic treatment dated the same day,¹⁰ feature scant details, so I assign them little weight. The CNRs are difficult to read, being hand-written, making it all but impossible to garner useful information from them.

18Dr. Palantzas’ OCF-18 features a brief comment about the applicant not being able to work full-time at the time of this examination, along with a diagnosis of soft-tissue injury and sequelae that include neck muscle injury, sprain and strain of neck joints and ligaments and thorax, sprain and strain of joints and ligaments of lumbar spine and pelvis, chronic post-traumatic headache, amongst other related physical symptoms.¹¹ Dr. Palantzas also noted psychological symptoms such as dizziness and giddiness, sleep disorders, nightmares, nervousness, signs of irritability and anger, and emotional shock and stress.¹²

19The OCF-18 is of little value in determining the applicant’s claim to IRBs, as it features no specific reasons why these diagnoses and symptoms mean that the applicant cannot perform the essential tasks of her employment. The report also omits any notation regarding how long the applicant would be expected to be off work while recovering from her injuries, if she could work part-time, or if she could work with modified duties.

20I assign the same limited weight to the physiotherapy treatment plan in dispute, authored by Ahmad Afifi, physiotherapist, dated January 15, 2020.¹³ It contains few details, and features the same lack of analysis when it comes to the question of whether the applicant is suffering from a substantial inability to perform the essential tasks of her pre-accident employment.

21As a result, there is minimal evidence when assessing whether the applicant suffers a substantial inability to complete her essential tasks of employment. While this treatment plan includes notations of the same injuries and sequelae noted above by Dr. Palantzas, along with added comments recording the applicant’s complaints about being unable to work, difficulty sleeping, headaches, and anxiety resulting in her driving less, there is no assessment here connecting these issues to the IRB test.¹⁴

22I find that the treatment plan of Dr. Maneet Bhatia, psychologist, and the resulting psychological assessment of Dr. Mehrdad Pojhan, psychologist, have minimal value with regard to the IRB test.

23The treatment plan by Dr. Bhatia, dated August 9, 2019, is largely based on self-reported symptoms. Dr. Bhatia’s conclusions are unpersuasive without any comparison to medical records, or any direct connection between the diagnoses and the IRB test.¹⁵

24The report of Dr. Pojhan, dated March 13, 2021, is unpersuasive for many of the same reasons noted above.¹⁶ Although this report includes the results of a clinical interview with the applicant, psychometric testing, observations about her physical pain, and a final diagnosis that she suffers from an adjustment disorder with mixed anxiety and depressed mood, it relies heavily on the self-reporting of the applicant for all of these conclusions.¹⁷

25I find Dr. Pojhan’s report irrelevant to the question of the applicant’s entitlement to IRBs. While Dr. Pojhan notes how the results of the Pain Catastrophizing Scale test that he supervised indicate that the applicant is in the range of people who remain unemployed one-year post-injury, this is a metric that has no direct application to the IRB test.¹⁸

26Dr. Pojhan does not directly assess the applicant’s ability or inability to work, with his final recommendations being counselling sessions to enable the applicant to develop coping strategies.¹⁹ At no point does Dr. Pojhan state or infer that the applicant is precluded from completing her essential tasks of employment as a result of accident-related psychological impairments.

27The applicant provided no other corroborating evidence. The applicant, for example, did not submit CNRs from a family physician, walk-in clinic, hospital, or any other medical provider aside from what has been mentioned above. No medical imaging seems to have been conducted. There is no OHIP summary or a report regarding prescription medication. As a result, it is difficult to follow the course of the applicant’s medical treatment and get a complete picture of how and why she claims an inability to work.

28I favour the medical evidence of the respondent, which is more comprehensive than that presented by the applicant when it comes to the issue of IRBs.

29I find the report of Dr. Alfonse Marchie, physiatrist, dated February 27, 2020²⁰ to be compelling. Dr. Marchie conducted a hands-on insurer’s examination (“IE”) of the applicant and is the only physiatrist to assess her. He diagnosed her as having full range of motion in all areas, although he did conclude that she sustained soft-tissue injuries to her left shoulder and left lower back as a result of the subject accident.²¹

30Dr. Marchie concludes that, from a musculoskeletal perspective, the applicant does not suffer a substantial inability to perform the essential tasks of her employment as a manicurist.²² He also includes the applicant’s comment to him that she intended to immediately return to this occupation.²³ His assessment did not find any evidence of accident-related impairments, but did reveal signs of bilateral GT bursitis, bilateral lateral epicondylitis, and bilateral biceps tendinopathy. Dr. Marchie does not believe that the latter issues are related to the subject accident.²⁴

31As a result of the above observations, Dr. Marchie concludes that the applicant sustained a minor injury and that the treatment plan in question here is not medically reasonable and necessary. He believes that no further treatment is warranted, and furthermore, that the treatments in the plan in dispute are too passive to provide prolonged pain relief, given that the accident occurred nine months before his assessment.²⁵

32I find the respondent’s medical evidence wanting when it comes to the applicant’s psychological health, as the respondent did not conduct an IE on these issues reported by the applicant. But as the applicant failed to meet her burden to demonstrate her entitlement (based on my observations above regarding the reports of Dr. Bhatia and Dr. Pojhan), this does not impact on my decision as it applies to the applicant’s entitlement to IRBs.

33As a result of the above, I find that the applicant is not entitled to IRBs.

The Minor Injury Guideline

34The 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 also defined in the Schedule.

35Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a limit of $3,500.00. An applicant may receive funding for treatment beyond this limit if they can demonstrate that they had a pre-existing condition, documented by a medical practitioner, before the accident which prevents maximal medical recovery under the MIG, or if they can provide evidence of an injury that is not a minor injury, such as chronic pain or psychological impairment.

36It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities.²⁶

Are the Applicant’s Psychological Injuries a Minor Injury?

37I find that the applicant has established on a balance of probabilities that she has sustained psychological symptoms and impairments that are outside of the minor injury definition in s. 3 of the Schedule.

38I prefer the applicant’s submissions and evidence here that rely largely on the reports of Dr. Bhatia and Dr. Pojhan. Both psychologists diagnosed the applicant with adjustment disorders, symptoms of anxiety and depression, sleep disturbances, irritability and anger, and nightmares as a result of the accident.

39The respondent’s criticism of the reports of Dr. Bhatia and Pojhan fail to upset the conclusions therein. While the respondent makes a valid point when it comes to the majority of the above diagnoses being based on the self-reported symptoms of the applicant, Dr. Pojhan also supervised a battery of psychological testing. The results of the RDS Inventory, for example, resulted in Dr. Pojhan diagnosing the applicant with severe clinical symptoms of depression.²⁷ Dr. Pojhan mitigates this somewhat with the open-ended statement that the applicant’s “responses to clinical inquiries and presentation are somewhat incongruous with the test results.”²⁸ Regardless, his final conclusion is that the applicant’s “presentation is consistent with a diagnosis of adjustment disorder with mixed anxiety and depressed mood according to the DSM V.”²⁹

40The respondent’s medical evidence is not as persuasive, as it relies almost entirely on the report of Dr. Marchie. No psychological IE was apparently conducted of the applicant. As Dr. Marchie is a physiatrist, without any claimed psychological training, I place little weight on his conclusions with regard to the psychological symptoms and impairments reported by the applicant.

41I do not find the applicant’s further arguments regarding a diagnosis of chronic pain warranting treatment outside of the MIG to be persuasive, as this is almost entirely unsupported by medical evidence. The physiotherapy treatment plan of Mr. Afifi, for example, includes just a single line diagnosing the applicant with chronic pain,³⁰ along with the conclusion that the applicant needed treatment outside the MIG in order to not “hinder or delay the healing process.”³¹ This is hardly a proper diagnosis of a chronic pain condition.

42Regardless, the psychological symptoms alone are enough to find that the applicant sustained an injury that is not a minor injury. Having made this decision, I will now turn to whether the treatment plans in dispute are reasonable and necessary.

The Treatment Plans

Is the Applicant Entitled to the Psychological Assessment?

43As I have found that the applicant’s psychological symptoms and impairments are not included in the minor injury definition in s. 3 of the Schedule, I find that she is entitled to the treatment plan for a psychological assessment.

44The goals of this assessment align with the diagnoses presented in both the treatment plan itself and the assessment that was conducted by Dr. Pojhan, so I find this plan to be medically reasonable and necessary. My reasoning can be found in the preceding section regarding the MIG determination, so I will not repeat it here.

Is the Applicant Entitled to the Physiotherapy Treatment Plan?

45I find that the applicant is not entitled to the physiotherapy treatment plan, as she has not demonstrated on a balance of probabilities that it is medically reasonable and necessary.

46The report of Dr. Marchie is persuasive in this respect. As noted above, he found the applicant to have a full range of motion and to be without any impairment related to the accident from a musculoskeletal perspective. Even more to the point, Dr. Marchie concluded that the applicant would not benefit from the physiotherapy treatment recommended in this plan because he found it to be too passive to provide prolonged pain relief. He also believed that no further treatment was warranted.

47I find the applicant’s evidence to be considerably less compelling as it relates to this treatment plan. As already reviewed above, the majority of the medical evidence provided by the applicant regarding her physical injuries and impairment is from treatment plans and forms. This is simply not sufficient evidence in light of an IE report from a physiatrist that contains observations and diagnoses that do not find this treatment plan to be medically reasonable and necessary.

CONCLUSION AND ORDER

48For the reasons outlined above, I find that:

1. The applicant is not entitled to an income replacement benefit in the amount of $376.92 per week from April 29, 2019 to date and ongoing.
2. The applicant sustained an injury that is not included in the minor injury definition in s. 3 of the Schedule.
3. The applicant is entitled to a medical benefit of $2,200.00 for a psychological assessment in a treatment plan from Somatic Assessments and Treatment Clinic dated August 8, 2019, plus interest in accordance with the Schedule.
4. The applicant is not entitled to $4,115.12 for physiotherapy services in a treatment plan from Total Recovery Rehab Centre dated January 15, 2020.

Footnotes

1. 1O. Reg. 34/10 (as amended).
2. 2Neither party submitted a police accident report.
3. 3Ibid. Tab 8 (OCF-2, June 21, 2019).
4. 4Ibid. Tab 8, pages 2-3.
5. 5Ibid. Tab 8, page 1.
6. 6Ibid. Tab 8, page 3.
7. 7Applicant Hearing Brief Tab 3 (OCF-3 of Ms. Xu, May 3, 2019).
8. 8Ibid. Tab 3, page 8.
9. 9Ibid.
10. 10Ibid. Tab 2, pages 1-6 (CNRs of Dr. Palantzas), and pages 19-23 (OCF-18 of Dr. Palantzas, September 25, 2019).
11. 11Ibid. Tab 2, pages 19 and 22.
12. 12Ibid.
13. 13Ibid. Tab 4, page 6 (OCF-18 of Mr. Afifi, September 25, 2019).
14. 14Ibid. Tab 4, page 5-6.
15. 15Ibid. Tab 7 (OCF-18 of Dr. Bhatia, August 9, 2019).
16. 16Ibid. Tab 1 (Psychology Assessment Report of Dr. Pojhan, March 13, 2021).
17. 17Ibid. Tab 1, page 3, page 9-10.
18. 18Ibid. Tab 1, page 9.
19. 19Ibid. Tab 1, page 12.
20. 20Respondent Hearing Brief Tab 2 (Physiatry Assessment of Dr. Marchie, February 27, 2020).
21. 21Ibid. Tab 2, page 13.
22. 22Ibid. Tab 2, page 15.
23. 23Ibid.
24. 24Ibid. Tab 2, page 14.
25. 25Ibid. Tab 2, pages 14-15.
26. 26Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
27. 27Applicant Hearing Brief, Tab 1, page 8 (Psychology Assessment Report of Dr. Pojhan, March 13, 2021).
28. 28Ibid.
29. 29Ibid. Tab 1, page 11.
30. 30Applicant Hearing Brief, Tab 4, page 7 (OCF-18 of Mr. Afifi, September 25, 2019).
31. 31Ibid. Tab 4, page 10.