Cao v. The Cooperators, 2023 CanLII 15065

Citation: Cao v. The Co-operators, 2023 ONLAT 20-012252/AABS

Licence Appeal Tribunal File Number: 20-012252/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:

Hui Yong Cao

Applicant

and

The Cooperators

Respondent

DECISION

ADJUDICATOR: Clive Forbes

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Emily A. Schatzker, Counsel

HEARD: By Way of Written Submission.

OVERVIEW

1Hui Yong Cao, the applicant was involved in an automobile accident on March 24, 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, The Co-operators, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are in dispute:

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 MIG?
2. If the applicant’s injuries are not considered to be predominantly minor: i. Is the applicant entitled to $2,200.00 for psychological assessment recommended by Somatic Assessment & Treatment Clinic as set out in a treatment plan (“OCF-18”) submitted on March 17, 2020?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the assessment plan in dispute is not reasonable and necessary and no interest is payable.

The applicant has not demonstrated that his impairments are outside of s. 3 of the Schedule and therefore removal from the MIG is not warranted

4The applicant has not demonstrated that he suffers from chronic pain or a psychological impairment that warrants removal from the MIG.

5Section 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 in accordance with the MIG. 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.” An 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 if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant on a balance of probabilities.

6The applicant submits that the following factors remove him from the MIG:

a. his chronic pain as a result of the accident; and

b. his psychological impairments.

7To this end, he relies on his OCF-23 Treatment Confirmation Form, the findings of a psychological pre-screening interview from Somatic Assessments & Treatment Clinic and the clinical notes and treatments records from Dr. Leung, his family physician and from Point Grey Physio.

8The respondent submits that the applicant has not met his burden to prove that he suffers from more than minor injuries, that he has developed a chronic pain condition or that he sustained an actual psychological impairment from the accident.

The applicant does not have chronic pain as a result of the accident

9I find the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

10In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects his day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from his soft tissue injuries.

11I do not agree with the applicant’s position that because of his complaint of left knee pain to Dr. Leung, on March 14, 2020, he now suffers from chronic pain because of the accident. I was not directed to any medical evidence that shows that the applicant sustained an injury to his left knee as a result of the accident or that any treatment for left knee injury was sought after his complaint. The left knee was not referenced as an injury or sequelae related to the accident in any OCF-1, OCF-23 or OCF-18 that was submitted. I am not persuaded that the applicant complaining one time of left knee pain to Dr. Leung qualifies as chronic pain.

12I agree with the respondent that there is no evidence of chronic pain that could be considered more than mere sequelae of the soft tissue injuries and there is no evidence that such pain is accompanied by functional impairment, which is the requirement for removal under this ground. A review of the clinical notes and records of the applicant’s family physician and other treating practitioners make no mention of chronic pain, offer a referral to a chronic pain specialist or suggest any negative impact on his activities of daily living. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain because of the accident.

13Given the above, I do not find that the accident contributed to a chronic pain condition causing functional impairment that requires treatment beyond the confines of the MIG. As such, the applicant has failed to establish that he suffers from chronic pain as a result of the accident that warrants removal from the MIG.

The applicant has not suffered a psychological impairment as a result of the accident

14I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

15I do not agree with the applicant’s assertion that his psychological impairments justify removal from the MIG. He relies on the pre-screening psychological interview conducted by Mandy Fang, social worker, supervised by Dr. Sharleen McDowall, psychologist, and the OCF-18 that was submitted by Dr. McDowall. The pre-screening report indicated that the applicant’s clinical presentation provides evidence that he is experiencing many of the symptoms of post-accident psychological impairment. On the OCF-18 that was submitted, Dr. McDowall also provided a description of the applicant’s injuries and sequelae as: specific (isolated) phobias, headaches, nightmares, non-organic sleep disorders, as well as irritability and anger.

16However, a review of the applicant’s family physician’s records up to February 24, 2021, reveals that the applicant complained once on April 03, 2019 about insomnia after the accident and was prescribed Zopiclone by Dr. Leung. I was not directed to any prescription summaries or other records to show that the applicant filled this prescription. In addition, Dr. Leung made no mention in his clinical notes and records that the applicant suffered a psychological impairment as a result of the accident.

17Also, on the OCF-23 dated April 10, 2019, that was submitted by Dr. Georgia Palantzas, chiropractor, only physical injuries were listed and there was no mention of any psychological injuries or sequelae sustained by the applicant. I have not been directed to any other notations of psychological concerns from the applicant's family doctor nor other medical practitioners who may have treated the applicant on an ongoing basis in order to support the applicant's submission that he has a psychological injury that would take him out of the MIG.

18I agree with the respondent that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. In my view, the opinion of Dr. McDowall that the applicant was presenting with an array of psychological symptoms, without contemporaneous reporting in the medical documentation and with no evidence of psychological impairment or emotional distress, does not demonstrate that removal from the MIG is required.

19I find the applicant has not presented compelling evidence that he sustained a psychological impairment as a result of the accident. First, there is limited continuous or contemporaneous reference to any psychological or emotional symptoms in the notes and records of his family physician that would provide objective confirmation of his struggle. Second, I find the opinion of Dr. McDowall that the applicant was presenting with an array of psychological symptoms is unsupported by the balance of the evidence. Accordingly, for these reasons, I find the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

Is the cost for psychological assessment reasonable and necessary?

20I have determined that the applicant has not demonstrated that removal from the MIG is warranted. As such, an analysis of whether the cost of the assessment in dispute is reasonable and necessary is not required.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The MIG limits have been exhausted and, as no benefits are payable, no interest is payable under s. 51.

ORDER

22The applicant has not demonstrated that removal from the MIG is warranted. The MIG limits have been exhausted. As such, an analysis of whether the cost of the assessment in dispute is reasonable and necessary is not required.

23Finally, given that there is no overdue payment of benefits, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.

24The application is dismissed.