Lin v. Certas Home and Auto Insurance, 2023 CanLII 15071

Citation: Lin v. Certas Home and Auto Insurance, 2023 ONLAT 20-014933/AABS

Licence Appeal Tribunal File Number: 20-014933/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:

Fa Ming Lin

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: April Snow, Counsel

HEARD: By way of written submissions

OVERVIEW

1Fa Ming Lin, (“FML”), was involved in an automobile accident on December 15, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). FML was denied benefits by the respondent, Certas, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue(s) in dispute are:

i. Are FML’s injuries predominantly minor as defined by the Schedule and subject to the $3,500.00 treatment limit under the Minor Injury Guideline (the “MIG”)?

ii. Is the medical benefit in the outstanding amount of $45.00 ($1.300.00, less $1,255.00 approved) for chiropractic services, recommended by Total Recovery Rehab Centre in a treatment plan (OCF-18) submitted on March 7, 2020, and denied March 18, 2020, reasonable and necessary?

iii. Is the cost of examination expense in the amount of $2,200.00 for a psychological assessment, recommended by Somatic Assessments and Treatment Clinic in an OCF-18 submitted August 5, 2020, denied August 19, 2020, reasonable and necessary?

iv. Is the medical benefit in the amount of $4,015.12 for chiropractic treatment, recommended by Total Recovery Rehab Centre in an OCF-18 submitted May 25, 2021, denied June 2, 2021, reasonable and necessary?

v. Is the medical benefit in the amount of $2,804.12 for psychological services, recommended by Somatic Assessments and Treatment Clinic in an OCF-18 submitted May 19, 2021, denied June 2, 2021, reasonable and necessary?

vi. Is the claim for medical expenses for medication in the amount of $137.85, submitted May 27, 2021, denied May 29, 2021, reasonable and necessary?

vii. Is FML entitled to an award under O. Reg. 664 because Certas unreasonably withheld or delayed payment of the benefits?

viii. Is FML entitled to interest on any overdue payment of benefits?

RESULT

3FML has failed to demonstrate that the injuries he suffered as a result of the accident were not predominantly minor. Accordingly, the disputed OCF-18s are not reasonable and necessary.

4FML is not entitled to an award or interest.

ANALYSIS

Did FML suffer predominantly minor injuries?

5Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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.”

6An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG.

7FML bears the onus to establish that his accident-related impairments require coverage beyond the $3,500.00 limit for minor injuries on a balance of probabilities.

8For the reasons to follow, I find the FML has failed to meet his onus on a balance of probabilities.

There is no evidence which supports that FML suffered physical injuries that require treatment beyond the MIG

9I find that FML suffered predominantly minor injuries that do not require treatment beyond the MIG limits.

10In analysing whether FML suffered an impairment that requires treatment beyond the MIG, I must consider what the Schedule sets out as a definition of “impairment”. According to s. 3(1) of the Schedule, an “impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function.

11To this end, FML relies on the Emergency Department record from SHN Birchmount Hospital, the clinical notes and records of his family physician, Dr. Tsang, and the records of Total Recovery Rehab Centre. The records of SHN Birchmount, show that FML had normal range of motion of his neck after initially complaining of neck pain at the time of the accident. He was discharged and diagnosed with whiplash. Upon discharge, FML was advised to take Tylenol or Advil, and no diagnostic imaging was ordered.

12At his initial visit to Dr. Tsang, FML presented with neck pain, low back pain and poor sleep. On examination, Dr. Tsang noted good range of motion of the neck and back with mild pain. Dr. Tsang diagnosed him with neck and back strain, which is captured under the MIG. FML saw Dr. Tsang approximately two months later where he complained of neck pain. Dr. Tsang again noted good range of neck motion with mild pain. Dr. Tsang diagnosed FML with a neck strain.

13FML did not subsequently attend Dr. Tsang for over one year, at which time he complained of left arm pain and a lump that started a few months prior. He next followed up with Dr. Tsang a few days later, presenting with neck pain. Dr. Tsang diagnosed him with chronic pain. His last visit to Dr. Tsang was for some neck pain and occasional headaches. Dr. Tsang diagnosed neck strain. I find the neck pain complaints and subsequent neck strain diagnoses are captured under the definition of minor injuries.

14Although Dr. Tsang notes chronic pain, I place very little weight on this evidence for a number of reasons. First, I find no evidence that FML suffers from chronic pain or suffers any functional impairment due to pain. None of the medical documentation show evidence of any functional impairment, no significant dependence on healthcare providers, and there is no referral to a pain specialist. Lastly, FML did not lose any time from work, further indicating that he does not suffer from functional impairment due to chronic pain.

15FML also submits that a left arm lesion was caused by the accident, however, there is no evidence to support this allegation.

16In discussing the left arm lesion, FML relies on the report of general surgeon, Dr. Li, who diagnosed him with a left upper arm lesion. Dr. Li conducted a procedure to address the lesion and diagnosed FML with a vascular malformation (which further supports that this is a non-accident-related health issue). There is no evidence before me that the vascular malformation was caused by the accident, or that the malformation would not be captured under the definition of a minor injury. Further, Dr. Li provides no opinion that the lesion formed as a result of the accident.

17It should be noted that this lesion did not develop until over one year after the accident. Additionally, Dr. Tsang’s records specifically note that it was, “less likely related to the accident.”

18Regarding the records of Total Recovery Rehab, FML attended 12 sessions of physiotherapy and seven sessions of chiropractic treatment. The bulk of the treatment was received within the first three months after the accident however, I was not directed to any session notes that discuss whether the treatment was beneficial.

19Certas submits that FML suffered predominantly minor sprain and strain injuries and is therefore subject to the maximum $3,500.00 under the MIG. As the MIG limit has been exhausted, and FML has not established that his accident-related injuries require treatment beyond the MIG, it submits that I must find that his injuries are predominantly minor.

20I agree.

21Weighing FML’s evidence from Dr. Tsang, the hospital record and the Total Recovery records, I am not persuaded that FML suffered injuries that are not predominantly minor. The hospital record notes a neck injury consistent with a sprain or strain-type of injury, which is captured within the minor injury definition. Dr. Tsang’s records note consistently good range of motion with minimal pain complaints. Lastly, the Total Recovery records fail to provide any assistance regarding the impact of facility-based treatment. Notably, FML’s self-reporting to his treating practitioners notes that he is independent with his self care and able to engage in some of his housekeeping activities. Further, he did not miss any time from work as a result of the accident.

22This corroborative evidence does not reveal impairments that establish FML’s injuries are not predominantly minor. As noted earlier, FML has managed to maintain or return to most pre-accident activities, despite the reports of minor pain. I am not persuaded that minor pain complaints and return to essentially all of his pre-accident activities warrants removal from or further facility-based treatment beyond the MIG limits.

23Accordingly, I find that FML has failed to demonstrate that his physical injuries require treatment beyond the MIG.

There is no evidence which supports that FML suffered psychological injuries that require treatment beyond the MIG

24As noted above, a diagnosed psychological condition may justify removal from the MIG.

25FML submits that because of documented ongoing psychological impairment, he requires treatment beyond the MIG limits.

26I disagree.

27FML points to the CNRs of Dr. Tsang (which notes difficulty with sleep, low mood and irritability); a pre-screen report from Dr. McDowall, psychologist (noting ongoing pain, poor sleep, increased irritability and frustration, driving avoidance, and emotional distress); and a psychological assessment with Dr. Pojhan (who diagnosed adjustment disorder with mixed anxiety and depressed mood).

28Certas argues that there is no evidence that FML suffered any significant psychological impairments as a result of the accident. It points to his self-reports that while he has had some driving anxiety, he continues to drive, he sleeps six hours per night, and has occasional nightmares unrelated to the accident. Further, there has been no significant impact on his memory or ability to concentrate. To this end, Certas’ position is that this evidence fails to establish that FML suffered any substantial psychological impairments or has any significant psychological impairment requiring further treatment outside of the MIG limits.

29I find that FML’s medical evidence does not support that he suffered anything beyond psychological sequelae as a result of the accident. For example:

i. FML mentioned “low mood” once in a two-year period to Dr. Tsang;

ii. Dr. Pojhan did not review any medical records in coming to his conclusion that FML suffered from adjustment disorder with mixed anxiety and depressed mood. This is key because there is no other objective medical evidence that supports a psychological diagnosis, any functional impairment or recommendations for psychological treatment or pharmacological treatment;

iii. Dr. Tsang’s CNR’s do not support that FML ever presented with any psychological complaints as a result of the accident. Further, these records contest Dr. Pojhan’s diagnosis due to a lack of corroborative evidence; and

iv. Although FML submits he was prescribed Lyrica for low mood and insomnia, the medical documentation notes that it was prescribed at his request, as a result of needing sleep medication.

30FML has not directed me to any persuasive medical documentation to support that he suffered a psychological impairment as a result of the accident. Accordingly, I find that he has failed to meet his onus to establish that he requires treatment beyond the MIG limits as a result of any psychological impairment that is more than just sequelae.

31FML had an opportunity to provide reply submissions, however, he did not. FML’s failure to respond to Certas’ position on the issues, in my view, confirms that he does not contest its findings. As such, I see no reason to interfere with Certas’ determination that FML suffered predominantly minor injuries as a result of the accident.

The disputed OCF-18s are not reasonable and necessary

32Having determined that FML has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the OCF-18s and expenses in dispute are reasonable and necessary under ss. 15 and 25 is not required. As no benefits are overdue, no interest is payable under s. 51.

AWARD

33Having determined that FML is not entitled to any benefits, Certas cannot have been found to have unreasonably withheld or delayed payment of any benefits.

34Accordingly, an award is not payable.

ORDER

35FML has failed to demonstrate that his accident-related injuries require removal from and treatment beyond the MIG limits. No interest is payable.

36FML is not entitled to an award.