Citation: Guo v. Certas Direct, 2023 ONLAT 20-012952/AABS

Licence Appeal Tribunal File Number: 20-012952/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:

Jian Guo

Applicant

and

Certas Direct

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”)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 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 a non-earner benefit (“NEB”) of $185.00 per week from July 22, 2019 to September 20, 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 a non-earner 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.

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.²

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. Dr. Palantzas notes the applicant is an elderly patient suffering chronic injuries including decreased range of motion and pain in the cervical, thoracic, lumbar spine, and shoulder regions, with radicular symptoms in the bilateral upper extremities.³

11Otherwise, the applicant relies on a sole clinical note from Dr. Jaklin Awad, family medicine specialist, from a Walk-In Clinic dated August 17, 2019. The applicant was seen approximately three weeks post-accident and it was noted he was suffering pain with range of motion at the lumbosacral area and pain with range of motion in the left shoulder. He was advised to attend physiotherapy and obtain an x-ray.⁴

12Aside from the OCF-18 dated January 10, 2020, and the sole clinical note dated August 17, 2019, the applicant has not presented any compelling evidence of chronic pain or a chronicity of pain symptoms. The applicant has made no reference to the criteria laid out in the American Medical Association Guides (“AMA Guides”) whatsoever.⁵ 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.

13Based 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

14Psychological 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.

15The 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 suffers from anxiety, irritability, fatigue, and fear in the wake of the accident.⁶

16I place little weight upon the OCF-18 and the attached Pre-Screening Report. This OCF-18 is the sole basis for the applicant’s claim related to psychological impairment. There is no reference to 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.

17The applicant has not met his evidentiary onus on a balance of probabilities standard. He relies solely on an OCF-18 and attached Pre-Screening Report. 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.

Non-Earner Benefit

18I am not persuaded the applicant has established he qualifies for a non-earner benefit pursuant to the Schedule.

19The test for entitlement to a non-earner benefit (“NEB”) is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

20Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

21“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”⁷

22The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.⁸

23The applicant relied on the Disability Certificate (“OCF-3”) completed by Dr. Palantzas dated June 28, 2019. Dr. Palantzas noted the applicant suffered a complete inability to carry on a normal life due to significant psychological issues, and a decrease in capacity for activities of daily living.⁹ The doctor found the applicant had difficulty with sustained postures, standing, walking, sitting, bending, lifting, carrying, pushing, pulling, squatting and overhead activities.¹⁰

24The applicant has not tendered any evidence of his pre-accident activities of daily living, nor made reference to the seminal case of Heath v. Economical Mutual Insurance Company regarding entitlement to non-earner benefits.¹¹ Without additional evidence, it is impossible to establish a clear baseline in order to make any comparison to his post-accident activities of daily living. Aside from the OCF-3 cited above, the applicant relies solely on the clinical note by Dr. Awad dated August 17, 2019. Simply put, this evidence is insufficient to establish a claim for NEB.

25When I consider the evidence tendered in relation to the claim for non-earner benefits, I am simply not persuaded the applicant has established he suffered an impairment that continuously prevented him from engaging in substantially all of the activities he was ordinarily engaged before the accident. As a result, the applicant’s claim for a non-earner benefit is denied.

OCF-18 at Issue

26Given 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

27Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

28The 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 a non-earner 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

1. 1O. Reg. 34/10 as amended.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Written Submissions of the Applicant, Treatment and Assessment Plan (“OCF-18”), January 10, 2020, Tab 4.
4. 4Written Submissions of the Applicant, Clinical Notes and Records of Dr. Jaklin Awad, August 17, 2019, Tab 2.
5. 5American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
6. 6Written Submissions of the Applicant, Treatment and Assessment Plan (“OCF-18”), October 18, 2019, Tab 6.
7. 716-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
8. 816-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) at para. 17.
9. 9Written Submissions of the Applicant, Disability Certificate (“OCF-3”), June 28, 2019, Tab 3.
10. 10Ibid.
11. 112009 ONCA 391.