Yong Lim v. Economical Insurance Company, 2023 CanLII 15060

Citation: Lim v. Economical Insurance Company, 2023 ONLAT 20-009858/AABS

Licence Appeal Tribunal File Number: 20-009858/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:

Yong Lim

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Anna Korolkova, Paralegal

For the Respondent: Earl Murtha, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Yong Lim ("the applicant") was involved in an automobile accident on March 20, 2018 and sought benefits from Economical Insurance Company ("the respondent") pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").

2The respondent determined that the applicant sustained a minor injury, subjected him to the Minor Injury Guideline ("the MIG") and denied his entitlement to the treatment and assessment plans listed in dispute. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for resolution of this dispute.

ISSUES

3The issues in dispute are:

1. 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 in the Minor Injury Guideline?
2. Is the applicant entitled to a medical benefit in the amount of $2,575.12 for chiropractic treatment, physical therapy, massage therapy, and laser therapy recommended in a treatment plan ("OCF-18") dated March 22, 2018?
3. Is the applicant entitled to a medical benefit in the amount of $1,242.56 for chiropractic treatment, exercise, stimulation, mobilization, and physical therapy recommended in an OCF-18 dated May 15, 2018?
4. Is the applicant entitled to a medical benefit in the amount of $1,830.08 for chiropractic treatment, physical therapy, exercise, muscle stimulation, and mobilization recommended in an OCF-18 dated June 7, 2018?
5. Is the applicant entitled to a medical benefit in the amount of $1,482.56 for chiropractic treatment, muscle stimulation, mobilization, physical therapy, and exercise recommended in an OCF-18 dated September 10, 2018?
6. Is the applicant entitled to a medical benefit in the amount of $1,235.04 for chiropractic treatment, exercise, muscle stimulation, mobilization, and physical therapy recommended in an OCF-18 dated November 22, 2018?
7. Is the applicant entitled to an examination expense in the amount of $2,000.00 for a psychological assessment recommended in an OCF-18 dated June 11, 2018?
8. Is the applicant entitled to an examination expense in the amount of $2,000.00 for a chronic pain assessment recommended in an OCF-18 dated December 7, 2018?
9. Is the applicant entitled to interest on overdue payment of benefits?

RESULT

4I find that the applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

5Having found that the applicant sustained a minor injury as a result of the accident, he is not entitled to the disputed OCF-18s, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment.

6Given there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The applicant's psychological assessment report is excluded from evidence

7Dr. Shaul's and Ms. Ilios' Psychological Assessment Report dated October 27, 2018 was disclosed after the production deadline and shall be excluded from the evidentiary record pursuant to Rule 9.4 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) ("Common Rules").

8The respondent submits that the applicant's Psychological Assessment Report by Dr. Andrew Shaul, psychologist, and Helen Ilios, registered psychometrist, dated October 27, 2018, should be excluded from the evidence pursuant to Rule 9.4 of the Tribunal's Common Rules. The respondent submits that it would be prejudiced by the inclusion and consideration of this report, as it was only served on June 16, 2021 with the applicant's written hearing submissions and document brief. The respondent's written submissions were due June 28, 2021, giving it approximately 12 days to respond to this new evidence. This report contains additional psychiatric diagnoses that were not known or disclosed to the respondent prior. Given the late service of this report, the respondent was unable to provide it to its own experts for review and comment prior to the hearing.

9The late disclosure is contrary to the deadlines outlined in the case conference report and order dated January 25, 2021. The case conference report and order specifically enumerated the production deadlines for this written hearing matter. The parties were required to exchange all documents they intended to rely upon at the hearing by May 14, 2021.

10There is no justification for the applicant's late disclosure. This Psychological Assessment Report is dated October 27, 2018, more than two and a half years prior to the May 14, 2021 production deadline. The applicant has failed to provide any reply submissions, nor explanation for this delay in production.

11By failing to comply with the May 14, 2021 production deadline, the applicant has failed to abide by the previous Tribunal Order, which falls directly within the ambit of Rule 9.4, as the respondent would be prejudiced by the late disclosure of this evidence. The respondent has been denied the opportunity to have its own experts review and comment on Dr. Shaul's report and the psychological diagnoses contained therein. In my view, inclusion of this report would also compromise the procedural fairness of the hearing pursuant to Rule 3.1(a). When I consider this potential unfairness, coupled with the lack of any explanation for the late disclosure, I am persuaded that this report shall be excluded from the record.

The Minor Injury Guideline

12The 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.

13Section 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 funding 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 an injury that is not included in the minor injury definition.

14It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities (Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct)).

15The applicant submits he suffers from a concussion, chronic pain, and a psychological impairment, which are not included in the definition of a minor injury. The respondent submits the applicant has failed to establish that his injuries are not predominantly minor and that they can be treated within the confines of the MIG.

16I agree with the respondent.

The Applicant has not established he suffered a concussion as a result of the accident

17The applicant has failed to establish he suffered a concussion as a result of the accident.

18A concussion is not included in the definition of a minor injury in s. 3(1) of the Schedule.

19The clinical notes and records of the applicant's family physician, Dr. Lee, do not include any reference to a concussion as a result of the accident, nor any potential reference to post-concussion syndrome. These records also do not indicate any specialist referral or diagnostic imaging related to a potential head injury following the accident.

20Instead, the applicant relies exclusively on the reference to a concussion listed as an injury in all five of the OCF-18s submitted for treatment. Although there is a reference to Dr. G. Karmy, physician, on the OCF-18 dated December 7, 2018, this document does not bear his signature. Otherwise, these documents were all prepared by Dr. Pivtoran, a chiropractor, and any diagnoses related to a potential concussion is outside the scope of his practice and are inconsistent with the medical records contemporaneous to the accident.

21The only reference to a concussion in the evidence is in the Insurer's Examination General Practitioner Report by Dr. J. Castiglione dated September 20, 2018. Dr. Castiglione noted there were no medical reports provided to confirm any concussion diagnosis. The applicant reported that he may have "slightly" hit his forehead on the steering wheel during the accident. In Dr. Castiglione's opinion, this impact would have resulted in a mild concussion, at most, and any related symptoms would have resolved within three months. He also noted that no post-concussion related symptoms were reported, which led him to opine that any possible concussion had resolved in the five months since the accident.

22I am not persuaded the applicant has established he suffered a concussion or post-concussive symptoms as a result of the accident. The applicant has provided no medical evidence to support the concussion diagnoses repeatedly cited in the OCF-18s. Given that it was the only medical report provided that addressed the issue, I place significant weight upon the conclusions made by Dr. Castiglione, who noted that any potential concussion symptoms would have been mild at most and resolved in the five months following the accident. I cannot conclude the applicant suffered a concussion in order to remove him from the MIG funding limit without a qualified medical opinion to confirm his claims.

The applicant has not established he suffers from chronic pain as a result of the accident

23I am not persuaded the applicant has established he suffers from chronic pain as a result of the accident. I have been provided little compelling evidence to indicate the applicant's accident-related injuries have had a detrimental impact on his functionality.

24The applicant must demonstrate on a balance of probabilities that he suffers from a chronic pain condition that affects his functionality. A chronic pain condition or injury is not included in the minor injury definition.

25Of the medical documents provided, only the Disability Certificate ("OCF-3") provides any reference to chronic. The OCF-3, completed by Dr. O. Pivtoran, chiropractor, dated October 29, 2019, lists injuries that include chronic cervical joint dysfunction, chronic lumbar spine dysfunction, chronic post-traumatic headache, concussion, pain at multiple sites, and chronic pain.

26Otherwise, the clinical notes and records of Dr. Lee do not establish the applicant suffered a functional impairment due to pain, nor do they provide a diagnosis of chronic pain linked to the accident. The applicant reported neck pain or back pain, and left shoulder pain on only four occasions between May 2018 and April 2019. On January 14, 2019, it was noted his pain had greatly reduced following an injection into his left shoulder. None of the four notes indicate an ongoing functional impairment due to pain.

27Complicating the chronic pain analysis is the fact the applicant was involved in a second accident on April 7, 2019. He met with Dr. Lee the next day and reported pain in his neck, shoulder, lower back and right rib. I find these pain complaints are remarkably similar to his pain complaints related to the subject accident. This raises potential causation issues related to the injuries sustained in the 2018 accident. According to the "but for" test outlined in Sabadash v. State Farm et al, 2019 ONSC 1121 (Ont. Div. Ct.), the initial accident does not need to be the cause of the injuries, but at least a necessary cause.

28Despite the potential causation issue raised, I find the applicant does not exhibit the hallmarks of a chronic pain condition including a reported chronicity of pain symptoms. For example, the applicant visited Dr. Lee twice following the April 2019 accident, followed by a two-year gap until February 16, 2021. There, the applicant advised Dr. Lee that he still suffered from intermittent pain, but was not utilizing any prescription medications, nor had he sought treatments in over a year.

29The Consultation Report by Dr. K. Minhas, Anesthesiologist, dated April 23, 2021, does not conclude that the applicant suffers from a chronic pain condition as a result of the accident. Dr. Minhas diagnosed the applicant with degenerative disc disease, facet arthropathy, and radiculopathy. Dr. Minhas recommended a cortisone injection to address the pain caused by degenerative changes in the applicant's spine. The evidence does not suggest that these degenerative changes were caused by the subject accident.

30Although not required, the applicant does not meet the criteria for a chronic pain syndrome as outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) ("AMA Guides"). Neither the clinical notes and records provided by Dr. Lee nor the consult report provided by Dr. Minhas include a diagnosis of chronic pain syndrome or demonstrate an ongoing functional impairment due to accident-related pain symptoms. The records also fail to establish whether the applicant met three of the six AMA Guides criteria to establish chronic pain. There is no evidence demonstrating that the applicant is dependent on family members or healthcare professionals, he is not using or abusing prescription medication, he is not deconditioned due to disuse, and there is no evidence demonstrating that he has withdrawn from social milieu or has failed to restore his pre-accident functioning.

31Given the lack of medical evidence to support his claim of chronic pain, I place significant weight upon the Insurer's Examination General Practitioner Report by Dr. Castiglione dated September 20, 2018. Dr. Castiglione noted the applicant suffered from no functional impairments, but soft tissue strain injuries to his cervical and thoracolumbar spine consistent with whiplash associated disorder I-II and possibly a minor head contusion – all which typically resolve in 8-12 weeks. He concluded that the applicant demonstrated no objective findings of any ongoing accident-related impairment.

32Overall, the applicant has not demonstrated that he suffers chronic accident-related pain that has impacted his functionality. The applicant has not demonstrated he suffers chronic pain, nor that his existing pain is a result of the accident. Thus, I am satisfied that his accident-related injures may be treated within the confines of the MIG.

The applicant has not established he suffers a psychological impairment

33I am not persuaded the applicant has adduced sufficient evidence to establish he suffered an accident-related psychological impairment.

34Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the definition of a minor injury pursuant to s. 3(1) of the Schedule.

35Dr. Lee's clinical notes and records fail to establish any pattern of psychological impairment related to the accident. The applicant reported interrupted sleep or insomnia on a total of five occasions between January 2019 and March 2021. However, this insomnia was linked to physical pain, and not psychological symptoms. It was not until February 26, 2021, or more than 35 months post-accident, that the applicant first reported any anxiety related to the accident. This is the sole entry related to any psychological impairment listed in Dr. Lee's clinical notes and records.

36The Psychological Pre-Screen Report by Dr. A. Shaul, psychologist, appended to the Additional Comments section of the OCF-18 dated June 11, 2018 fails to establish that the applicant suffers from any symptoms of a psychological impairment. Dr. Shaul based his recommendation for a comprehensive psychological assessment wholly on the applicant's self-reporting in a pre-screen interview where it was highlighted that he suffered an impact to his head during the accident. As noted previously, whether the applicant sustained an impact to the head is questionable, and unlikely to lead to any lasting impairment.

37I place no weight upon the Pre-Screen Report provided by Dr. Shaul. It indicates the interview was conducted under his supervision. However, there is no explanation regarding what other parties were involved in the pre-screen interview, or if Dr. Shaul conducted this interview personally. This goes directly to the reliability of this document and given this uncertainty, I cannot place any weight upon it.

38Given there has been no other admissible evidence tendered with regard to the alleged psychological impairment at issue, I conclude the applicant has not met his onus in establishing he suffered a psychological impairment that is not captured within the minor injury definition in s. 3 of the Schedule.

The applicant is not entitled to the OCF-18s in dispute

39Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.

Interest

40Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

41The 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 the disputed OCF-18s, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment;

iii. The applicant not entitled to interest pursuant to s. 51 of the Schedule.