Licence Appeal Tribunal File Number: 20-012963/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:
Zhen Yu Guo
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
VICE-CHAIR: Ian Maedel
APPEARANCES:
For the Applicant: Yu Jiang, Paralegal
For the Respondent: Candace Mak, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on June 23, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). 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 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 limit and within the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to an income replacement benefit of $281.49 per week from July 1, 2019 to December 31, 2019?
iii. Is the applicant entitled to a rehabilitation benefit in the amount of $2,230.64 for chiropractic treatment recommended by Point Grey Physio in a treatment plan (“OCF-18”) dated January 10, 2020?
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 18, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;
ii. The applicant is not entitled to an income replacement benefit;
iii. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, the OCF-18 in dispute is not reasonable and necessary;
iv. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
4Withdrawn Issue: the applicant withdrew the OCF-18 dated October 18, 2019 for a psychological assessment, as listed as above as issue iv.
ANALYSIS
The Minor Injury Guideline
5The Minor Injury Guideline (“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.
6Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 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 a psychological impairment or chronic pain with a functional impairment.
7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.1
8The applicant has already exhausted the $3,500.00 MIG treatment limit.
Chronic Pain and the MIG
9The applicant must demonstrate on a balance of probabilities that his functionality has been affected in order to be removed from the MIG. In this matter, I have been provided with little compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on his functionality.
10To establish the applicant suffers from chronic pain, or a chronicity of pain symptoms, the applicant relies on the OCF-18 by Dr. Georgia Palantzas, Chiropractor dated January 10, 2020, for additional chiropractic treatment approximately seven months post-accident. Dr. Palantzas notes the applicant is suffering from residual injuries and persistent pain post-accident (chronic pain). He is noted to have decreased range of motion in his cervical, thoracic, and lumbar spine. Dr, Palantzas also noted radicular symptoms in his bilateral extremities with associated weakness, headaches, and dizziness.2
11The OCF-18 and Psychological Pre-Screen Report provided by Dr. Maneet Bhatia, psychologist dated October 18, 2019, also indicated the applicant was experiencing daily pain in his head and neck, affecting his work and sleep.3
12Otherwise, the applicant relies on three separate clinical notes from a walk-in clinic. First, on August 17, 2019, when the applicant was seen by Dr. Jaklin Awad, physician, approximately three weeks post-accident. Dr. Awad noted musculoskeletal pain with range of motion at the lumbosacral area, advised the applicant to attend physiotherapy, obtain an x-ray, and prescribed Vimovo for pain.4
13On July 10, 2021, more than two years post-accident, the applicant contacted Dr. Awad for a telephone consultation requesting a refill of his pain medication. The applicant indicated he was still suffering lower back pain related to the accident in 2019. Again, Dr. Awad advised him to attend physiotherapy and refilled his prescription for Vimovo.5
14Finally, on August 1, 2021, the applicant again contacted the walk-in clinic and had a telephone consultation with Dr. Gregory Major, physician. The applicant reported pain in right and left side of his lower back with some pain radiation down the leg. Dr. Major assessed the applicant as having “lower back pain – chronic”.6 He was prescribed Naprosyn for pain and advised to follow up after imaging of his back was completed. It was also noted the applicant failed to obtain a lumbosacral x-ray of his spine.7
15Aside from the two OCF-18s dated January 10, 2020, and October 18, 2019, and the three clinical notes and records from the walk-in clinic, the applicant has not presented any compelling evidence of chronic pain or a chronicity of pain symptoms. Although there is an allusion to chronic pain by Dr. Major, this was based solely on the applicant’s reporting, and not a physical examination. This evidence is simply insufficient to establish a pattern of pain symptoms affecting his functionality. Additionally, the applicant made no reference to the criteria laid out in the American Medical Association Guides (“AMA Guides”) whatsoever.8 Although not required, a reference to the AMA Guides is often a helpful interpretative tool in assessing whether an applicant is suffering from post-accident chronic pain and its potential effects on functionality.
16Based on the evidence, the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain in order to remove him from the funding limits of the MIG.
Psychological Impairment and the MIG
17Psychological impairments, if established, fall outside of the MIG, because such impairments are not included in the prescribed definition of “minor injuries”. I am not persuaded the applicant has established he suffers from a psychological impairment as a result of the accident.
18The applicant relies on the OCF-18 by Dr. Maneet Bhatia, psychologist dated October 18, 2019, to establish the applicant suffers a psychological impairment as a result of the accident. Attached with this OCF-18 is a Psychological Pre-Screening Report by Xiao Lan Yang, registered psychotherapist and Dr. Bhatia, indicating the applicant is anxious, fearful, frustrated and has difficulty coping with his emotions as a result of the accident.9
19I place little weight upon the OCF-18 and the attached Pre-Screening Report, as neither reference any clinical notes and records, nor any additional assessment reports to support any evidence that the applicant suffered a psychological impairment that would remove him from the treatment limits of the MIG. The Pre-Screening Report does not contain any evidence that objective psychometric testing was conducted as part of this initial assessment. Additionally, it remains unclear what supervisory role Dr. Bhatia had in conducting this pre-screening, as Mr. Yang, a registered psychotherapist, lacked the authority to provide a psychological diagnosis.
20The applicant has not met his evidentiary onus on a balance of probabilities standard. Without additional evidence, these documents are uncompelling in relation to any claim of psychological impairment. As a result, I cannot conclude the applicant has established any accident-related psychological impairment that would fall outside of the MIG and the prescribed definition of minor injuries.
Income Replacement Benefit
21I am not persuaded the applicant has established he qualifies for an income replacement (“IRB”) benefit pursuant to the Schedule.
22The test for eligibility to receive an IRB within 104 weeks of the 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.
23The applicant bears the burden of proving on a balance of probabilities that he is entitled to an IRB for the period from July 1, 2019, to December 31, 2019.
24The applicant submits he was self-employed as a contractor pre-accident and has since been unable to return to work. To establish his entitlement to an IRB, he relies on tax documents and an accounting report provided by Green Fortune Accounting Corporation.
25Both Disability Certificates (“OCF-3s”) dated June 28, 2018, and May 21, 2020, completed by Dr. Georgia Palantzas, chiropractor, indicate the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident.10 Both documents also stated the applicant was not working and the last date he worked was June 22, 2019.
26The Green Fortune Accounting Report completed by Ying Yang, chartered accountant, calculated the applicant’s IRB based on the previous 52 weeks of self-employed income. Mr. Yang indicated that the applicant’s weekly payable IRB for this period was $281.49 based on 70% of the applicant’s gross weekly income.11
27However, the accounting report does not account for any income earned post-accident. Despite the statements in both OCF-3s about the applicant’s last date of work being June 22, 2019, it is clear the applicant returned to work post-accident.
28First, on August 17, 2019, the applicant indicated to Dr. Awad that following the accident, he experienced difficulty concentrating at work in July of 2019.12 Second, in the Psychological Pre-Screening Report by Mr. Yang and Dr. Bhatia, the applicant reported pain, as he was unable to lift objects or stand for prolonged periods at work. Similarly, the applicant advised he could no longer match his previous work standards, causing some customers to be unsatisfied with his work performance. He reported pressure to maintain his previous pace of work and eventually reduced his working hours as a result, delaying renovation projects.13
29Any potential post-accident income was not reported in the applicant’s accounting report as tendered. Similarly, it was footnoted in the report that Mr. Yang was advised by the applicant’s legal representative that all income earned in 2019 was earned pre-accident.14 The applicant’s self-reporting regarding a return to work clearly contradicts the financial information provided in the Green Fortune Accounting Report. This goes directly to the reliability of the report and to the applicant’s credibility.
30Aside from the reliability issues related to the accounting report, the applicant has provided no evidence related to details of his self-employment, including his. He description of his essential job duties, past work experience, pre-accident work hours, nor the physical requirements of his self-employment.
31The applicant has not provided sufficient evidence regarding his entitlement to an IRB in the 104-week period following the accident. The information outlined in the accounting report tendered is clearly contradicted by the applicant’s self-reporting regarding his post-accident employment. He has otherwise provided no expert opinion that he has a substantial inability to perform the essential tasks of his pre-accident employment as a contractor. Thus, the applicant is ineligible to receive an IRB from July 1, 2019, to December 31, 2019.
OCF-18 at Issue
32Given that the $3,500.00 treatment limit was previously exhausted, no additional analysis is required to determine if the treatment plan for $2,230.64 in chiropractic treatment is reasonable and necessary pursuant to the Schedule.
Interest
33Given there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
34The application is dismissed, and I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;
ii. The applicant is not entitled to an income replacement benefit;
iii. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, the OCF-18 in dispute is not reasonable and necessary;
iv. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
Released: January 11, 2023
__________________________
Ian Maedel
Vice-Chair
Footnotes
- Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
- Written Submissions of the Applicant, Treatment and Assessment Plan (“OCF-18”), January 10, 2020, Tab 4.
- Written Submissions of the Applicant, Treatment and Assessment Plan (“OCF-18”), October 18, 2019, Tab 7.
- Written Submissions of the Applicant, Clinical Notes and Records of Dr. Jaklin Awad, August 17, 2019, Tab 2.
- Written Submissions of the Applicant, Clinical Notes and Records of Dr. Jaklin Awad, July 10, 2021, Tab 2.
- Written Submissions of the Applicant, Clinical Notes and Records of Dr. Gregory Major, August 1, 2021, Tab 2.
- Ibid.
- American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
- Written Submissions of the Applicant, Treatment and Assessment Plan (“OCF-18”), October 18, 2019, Tab 6.
- Written Submissions of the Applicant, Disability Certificates, Tabs 3 and 6.
- Written Submissions of the Applicant, IRB Accounting Report by Green Fortune Accounting Corporation, August 24, 2020, Tab 8.
- Written Submissions of the Applicant, Clinical Notes and Records of Dr. Jaklin Awad, August 17, 2019, Tab 2.
- Written Submissions of the Applicant, Treatment and Assessment Plan (“OCF-18”), October 18, 2019, Tab 6.
- Written Submissions of the Applicant, IRB Accounting Report by Green Fortune Accounting Corporation, August 24, 2020, Tab 8, footnote 4.