Ma v. The Co-Operators Insurance Company, 2023 CanLII 17704

Ma v. The Co-Operators Insurance Company, 2023 ONLAT 20-013371/AABS

Licence Appeal Tribunal File Number: 20-013371/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:

Shi Fang Ma

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Emily Schatzker, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on July 31, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ The applicant was denied certain benefits by Aviva Insurance Company, (the “respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

2The following issues are to be decided:

a. Is the applicant entitled to receive a non-earner benefit (“NEB”) of $185.00 per week from August 29, 2019 to July 31, 2021?

b. 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 (“MIG”)?

c. Is the applicant entitled to $225.62 for chiropractic services, recommended by V Care Rehab Centre in a treatment plan (OCF-18) dated October 24, 2019?

d. Is the applicant entitled to $3,701.88 for counselling services, recommended by Somatic Assessments in a treatment plan (OCF-18) dated April 7, 2020?

e. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Somatic Assessments in a treatment plan (OCF-18) dated August 16, 2019?

f. Is the applicant entitled to interest on any overdue payment of benefits under s. 51 of the Schedule?

RESULT

3I find that:

a. The applicant is not entitled to receive a NEB of $185.00 per week from August 29, 2019 to July 31, 2021;

b. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

c. The three treatment plans in dispute are not payable as the funding limits have been exhausted; and

d. The applicant is not entitled to interest.

ANALYSIS

NON-EARNER BENEFIT

4The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. The provision 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.

5S. 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.

6Both parties rely on the decision in Heath v. Economical Mutual Insurance Company² (“Heath”), wherein the Court of Appeal outlines several principles for the determination of entitlement to a NEB:

a. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

b. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

c. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

d. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

e. “Engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,

f. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.³

7“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.”⁴

8The 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.⁵

9The applicant submits that she is entitled to a NEB due to a myriad of injuries and impairments caused by the accident, from August 29, 2019 to July 31, 2021, at a rate of $185 per week.

10The applicant relies on the Activities of Normal Life (“OCF-12”) form dated November 19, 2019. This form was discontinued in 2010 and is no longer used to apply for a NEB. The contents of the form provide that pre-accident, the applicant was in good health and was fully independent with all personal care, functional ability, and housekeeping tasks.⁶ By contrast, the applicant submits that post-accident, she could not participate in activities such as: walking, climbing stairs, driving, social activities, grocery shopping and cooking.⁷

11The applicant also relies on the clinical notes and records (“CNRs”) of Dr. Andrew Wan, family physician, from various dates in 2019-2021 to support her claim for ongoing neck and shoulder pain as a result of the accident. The majority of Dr. Wan’s CNRs are illegible, with the exception of an x-ray and ultrasound result dated August 5, 2021, which found that there was no evidence of fracture of glenohumeral joint arthropathy in the applicant’s right shoulder.⁸

12The applicant relies on the psychological assessment report of Mandy Fang, registered psychotherapist, working under the supervision of Dr. Sharleen McDowall, dated March 27, 2020. The applicant participated in a tele-psychotherapy virtual clinic using a video platform. The report provides that the applicant suffered a psychological impairment and Ms. Wang recommended that the applicant engage in psychological treatment including a course of cognitive-behavioral therapy. Ms. Fang did not make a clear comparison between the pre-accident and post-accident state of the applicant. It was also unclear from the report what supervision was provided to Ms. Fang by Dr. McDowall. There is also no evidence that the applicant was seen, interviewed or assessed by Dr. McDowall.

13The applicant also submits that the respondent’s insurer examinations (“IE”) reports completed by Dr. Kehinde Aladetoyinbo, psychiatrist, and Dr. Alfonse Marchie, physiatrist, dated August 23, 2021, should be given little to no weight, as the respondent completed the examinations almost two years after the accident. Based on the evidence before me, I find that following the respondent’s receipt of Dr. Wan’s CNRs on January 18, 2021, five sets of IE dated between February and July 2021 were scheduled by the respondent and cancelled at the request of the applicant. As such, I am not going to discount the weight of the reports and findings of Dr. Aladetoyinbo and Dr. Marchie due to the delay in conducting the IEs because of the conduct of the applicant.

14It is the respondent’s position that the applicant has not discharged her onus in establishing entitlement to the NEB. The respondent cites Heath⁹ to demonstrate the high threshold to be met, inclusive of a comprehensive account of pre- and post-accident activity level.

15The respondent relies on the IEs, completed by Dr. Aladetoyinbo and Dr. Marchie, dated August 23, 2021 in support of its position.

16The applicant reported her daily activities to Dr. Aladetoyinbo:¹⁰

I get up in the morning walk the dog in the morning, clean the dog. I will do some routine clean up, wash my face, brush my teeth, prepare breakfast for my kids. We eat breakfast with them. I will either go study or do some laundry. My child will help me to clean the kitchen. While kids are doing their homework, I will continue with my study and practice the exercise preparing for the RMT exam. I will prepare some lunch. I will see if I need to go grocery shopping, will do some house maintenance, car cleaning because I am a single mom. Sometimes I take the kids out for a walk or to the park, then we come home, prepare dinner. After dinner I tidy up I take the dog out for a walk again I come home I will continue with my study. If I feel tired, I will go to bed at 10:00pm. If I am not tired, I continue with my study and go to bed at 1:00 or 2:00am.

17The reference above demonstrates that the applicant is capable of carrying on a normal life post-accident.

18Further, the applicant made references to driving independence, contacting friends almost everyday, and independence in getting ready, including dressing with a minor limitation of zipping up garments from the back. This is inconsistent with the applicant’s claim that she could not participate in activities such as driving, social activities, and getting dressed.

19While both of the IE reports mention these activities, none contain an analysis or comparison between the period pre-accident and post-accident. Based on Dr. Aladetoyinbo’s report, the respondent submitted it is evident that the applicant continues to engage in these tasks post-accident.

20The respondent also references the IE report of Dr. Marchie.¹¹ Dr. Marchie opines that there is no reason why the applicant cannot engage in all pre-accident daily living activities. Since the accident the applicant still takes care of her kids and does all the cooking, however she is only able to do light cleaning and as also noted by Dr. Aladetoyinbo the applicant at times has difficulties putting on her clothing due to discomfort in her right shoulder.

21After considering the submissions and evidence of the parties, I find that the applicant has not met her evidentiary burden of providing compelling evidence in support of her claim that she suffers a complete inability to carry on a normal life as a result of the accident. There must be contemporaneous evidence in support of the complete inability test. I am persuaded by the totality of medical evidence presented by Dr. Aladetoyinbo and Dr. Marchie that the applicant does not meet the test for NEB. The applicant has failed to provide an evident reason or explanation as to why she cannot engage in all pre-accident activities.

22When I consider the totality of the evidence tendered, I am simply not persuaded that the applicant has established she suffered an impairment that continuously prevented her from engaging in substantially all of the activities she was engaged in before the accident. To the contrary, the evidence before me suggests that she is engaging in pre-accident activities including: caring for her children, caring for her dogs, performing the majority of her personal care tasks, engaging in some of her housekeeping and home maintenance activities (including cooking, laundry, cleaning her car and grocery shopping), driving, interacting with friends and participating in her massage therapy program.

23Put simply, the evidence before me is insufficient to establish an NEB claim. As a result, the applicant’s claim for NEB is denied for the disputed period.

MINOR INJURY GUIDELINE (“MIG”)

24The 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.”

25Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

26An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate through compelling evidence 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 in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

27It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.¹²

Did the applicant suffer chronic pain to that warrant the removal from the MIG?

28For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

29Both parties referenced the six criteria laid out in the American Medical Association Guides¹³ (“AMA Guides”), however neither applied the criteria to the matter. The AMA Guides’ provisions relating to chronic pain are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain.

30The applicant submits that she should be removed from the MIG as she suffers from chronic pain as a result of the accident.

31The applicant relies on the CNRs of Dr. Wan to support her ongoing neck and shoulder pain.¹⁴ I reiterate that the CNRs of Dr. Wan are illegible.

32The applicant concludes that based on these records, it is apparent that she suffers from chronic pain, specifically chronic neck and right shoulder pain based on the criteria outlined in AMA Guides for chronic pain.

33The respondent relies on 17-00640 v. TD Insurance which provides that the onus is on the applicant to show that a diagnosis of chronic pain is not merely the sequelae of the soft tissue injuries but is the applicant’s predominant injury.¹⁵

34The respondent submits that the complaints to Dr. Wan are sparce, although the CNRs are ineligible the dates of the applicants’ visits are clear. The applicant saw Dr. Wan twice following the accident on August 2, 2019, and August 14, 2019. The next visit to Dr. Wan was not until February 7, 2020. There is also no record of a referral to a specialist.

35I am not satisfied that the applicant has demonstrated a functional impairment as a result of her alleged chronic pain. Although there may have been reference to chronic pain by Dr. Wan during the two appointments, absent a medical diagnosis of chronic pain, there must still be evidence of a functional impairment. There is no reference to a caregiver to assist the applicant with self-care or household tasks. I have been provided no evidence of an over-reliance on prescription medication, excessive dependence on health care providers, spouse or family. I am also not persuaded due to the gap in the applicant’s medical and treatment appointments.

36For all the above reasons, the applicant has not met her onus in proving on a balance of probabilities that her accident-related impairments do not fit within the MIG.

Did the applicant suffer psychological impairments that justify the removal from the MIG?

37An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, on the basis that psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.

38In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments. I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

39The applicant relies on Dr. Wan’s referral for a psychological assessment, dated August 14, 2019.

40The applicant also relies on the psychological assessment report completed by Ms. Fang, dated March 27, 2020. The report outlines that the applicant suffers from a psychological impairment and it was recommended that the applicant engage in psychological treatment including a course of cognitive-behavioral therapy.

41The respondent submits that the report of Ms. Fang was completed more than 7 months after the referral, and she did not review any of the applicants’ medical records. The virtual assessment relied on the applicant’s self-report. Furthermore, there was no evidence to suggest that the applicant saw Dr. McDowall.

42The respondent cites Tran v. Certas Home and Auto Insurance¹⁶ and X.Y.X. v. The Personal Insurance Company¹⁷, where it was found that an assessment was rejected because the conclusions were “significantly eroded by the lack of medical reports reviewed.”

43The respondent provides that Dr. Aladetoyinbo is an experienced psychiatrist who assessed the applicant and concluded that “the currently observed symptom profile does not appear to meet the criteria threshold for any DSM-V diagnostic entities.”¹⁸

44After considering the evidence and submissions from the parties, I find that the applicant has not met her onus to demonstrate that she suffers from a psychological impairment as a result of the accident on a balance of probabilities. I am particularly persuaded by the findings of the only psychiatrist Dr. Aladetoyinbo, who assessed the applicant in person and as such I find that the applicant did not sustain psychological impairments that would remove her from the MIG.

45The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

46Given that there are no overdue payments of benefits, the applicant is not entitled to interest under s. 51 of the Schedule.

ORDER

47The applicant is not entitled to any of the benefits claimed.

48As no benefits are payable, no interest is owing.

49The application is dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 22009 ONCA 391.
3. 3Ibid.
4. 416-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) and Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
5. 516-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT).
6. 6OCF-12, Activities of Normal Life, dated November 19, 2019.
7. 7Requires help with: bathing, grooming, dressing, toileting, standing, sitting, garbage removal, laundry, balancing a bank book, keeping appointments, remembering to do errands, reading, conversations, findings words to express though, and writing.
8. 8Ontario Medical Imaging- Chalmers Gate X-Ray and Ultrasound, August 5, 2021.
9. 92009 (ONCA 391).
10. 10Psychiatric Assessment, Dr. Aladetoyinbo, dated August 23, 2021.
11. 11Physiatry Assessment, Dr. Marchie, dated August 23, 2021.
12. 12Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
13. 13American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
14. 14CNRs, Dr. Wan, various dates 2019.
15. 152018 CanLII 13142.
16. 162021 CanLII 43547.
17. 172017 CanLII 59515.
18. 18Psychiatric Assessment, Dr Aladetoyinbo, dated August 23, 2021.