Licence Appeal Tribunal File Number: 21-000853/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:
Qing Bang Zheng
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Yu Jiang, Paralegal
For the Respondent: Jonathan B. White, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Qing Bang Zheng (the “applicant”) was involved in a motor vehicle accident on October 21, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Pembridge Insurance Company (the “respondent”) determined that the applicant sustained a minor injury as defined in s. 3 of the Schedule, subjected him to the Minor Injury Guideline (the “MIG”) and its $3,500.00 funding limit on treatment, and denied certain medical benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the resulting dispute.
3The applicant submits that he suffers from chronic pain and psychological impairments as a result of the accident, injuries that are not minor as defined in the Schedule, and that he is entitled to a non-earner benefit (“NEB”), one treatment plan, and two claims for medical expenses. The respondent argues that the applicant’s injuries fall within the Schedule’s definition of minor injuries and sequelae, that he has not met the NEB test in the Schedule, and that the treatment plan and expenses have not been proven to be reasonable and necessary.
ISSUES IN DISPUTE
4The following issues are in dispute:
Are the applicant’s injuries predominantly minor as defined in s. 3(1) of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?
Is the applicant entitled to an NEB in the amount of $185.00 per week from November 19, 2018 to date and ongoing?
Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 dated May 2, 2019?
Is the applicant entitled to $1,275.26 for prescription medication and physiotherapy expenses, submitted in an expenses claim form/OCF-6 dated March 12, 2019?
Is the applicant entitled to $131.39 for physical therapy expenses, submitted in a claim form dated April 15, 2021?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
5I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.
ii. Given that the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, the treatment plan and expenses in dispute are not payable.
iii. The applicant is not entitled to payment of the NEB, as he has not demonstrated a complete inability to carry on a normal life as a result of the accident.
iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.
ANALYSIS
The Minor Injury Guideline (MIG)
6The 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 also defined in the Schedule.
7Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a limit of $3,500.00. An applicant may receive funding for treatment beyond this limit if they can demonstrate that they had a pre-existing condition, documented by a medical practitioner, before the accident which prevents maximal medical recovery under the MIG, or if they can provide evidence of an injury that is not a minor injury, such as chronic pain or psychological impairment.
8The Tribunal has established that for chronic pain to warrant an applicant’s removal from the MIG, it must be accompanied by a functional impairment. It is not enough for an applicant to demonstrate ongoing self-reported pain.
9It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities. In this case, the MIG has been exhausted.
Are the applicant’s injuries minor as defined in the Schedule?
10I am not persuaded that the applicant has proven that his injuries fall outside of the Schedule’s definition of a minor injury. The applicant argues that he suffers from chronic pain and a psychological impairment as a result of the accident, and should therefore be removed from the MIG, but submits limited evidence to demonstrate either condition.
11The applicant has not been diagnosed with a chronic pain condition or an injury outside of the definitions in the MIG by any medical expert. The applicant has not submitted any medical assessment reports with regard to the chronic pain claim, relying primarily on the clinical notes and records (“CNRs”) of Dr. Frederick Dong, family physician. The applicant submits that chronic pain is a condition that persists for at least three to six months, however, and does not require a formal diagnosis, citing C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT) in support of this position.
12There is limited medical support for this argument. Dr. Dong’s CNRs do not include any specific mention of chronic pain lasting consistently for three to six months, or even much about the accident at all. The applicant apparently saw Dr. Dong with accident-related concerns just twice, on December 5, 2018 and on May 2, 2019. Dr. Dong did not make any formal diagnosis of the applicant during either visit. At the first visit, Dr. Dong noted the applicant’s stiffness and limited extension of the lower spine, but also that the applicant reported that his neck pain from the accident had been “largely resolved.” As a result of the second visit, Dr. Dong ordered spinal x-rays suspecting that the applicant might be suffering from age-related degenerative disc disease. These x-rays were taken on May 9, 2019 and showed slight degenerative spurring that could be indicative of early degenerative disc disease, along with mild osteoarthritis and slight right convexed scoliosis suggesting pain or muscle spasm. There was no evidence of an accident-related injury that would be defined as non-minor in nature according to the Schedule, or an indication that any pre-existing condition was exacerbated by the accident and would require treatment outside of the MIG. The applicant did not discuss accident-related injuries during any of his subsequent telephone and in-person appointments with Dr. Dong through 2020 and 2021.
13With regard to chronic pain, the applicant also relies on a treatment plan not in dispute here completed by Dr. Georgia Palantzas, chiropractor, dated May 13, 2019. I assign it limited weight, however, as this plan is not in dispute here, and it is well established by the Tribunal that a treatment plan is not medical evidence in and of itself without an analysis as to why it is reasonable and necessary. Dr. Palantzas is also a chiropractor, with no claimed expertise or training in chronic pain conditions.
14Similarly, the applicant has not demonstrated that he is suffering or possibly suffering from a psychological impairment that would warrant a psychological assessment and removal from the MIG. Medical evidence submitted by the applicant is not persuasive. He relies on the treatment plan in dispute, completed by Dr. Sharleen McDowall, psychologist, on May 2, 2019, along with support observations cited in the CNRs of Dr. Dong. Yet neither include any sort of diagnosis that the applicant sustained a psychological impairment as a result of the accident. Dr. McDowall documents the applicant’s complaints of mood disturbances, sleep problems and nightmares, poor concentration and memory, vehicular phobia, and feelings of irritability, impatience, and depression, and recommends a psychological assessment. But as has already been noted above, a treatment plan is not sufficient evidence without supporting medical analysis. I assign Dr. McDowall’s plan limited weight as a result. The same can be said about the CNRs of Dr. Dong. He is a family physician with no claimed psychological training. He also writes that the applicant is experiencing “some anxiety following MVA” just a single time, after an appointment with the applicant on December 5, 2018, and prescribes a few tablets of temazepam to assist with accident-related sleep difficulties. Nothing from either physician establishes that the applicant sustained a psychological impairment that would warrant a psychological assessment and removal from the MIG.
15The applicant concludes by asserting that the above medical evidence should be assigned significant weight because the respondent did not submit any medical evidence to counter it. While this is correct, I note that it is the applicant’s burden to prove entitlement to a benefit. I also accept the respondent’s explanation that no medical evidence was submitted because the applicant spent significant time residing in China from 2019 to 2021 and did not attend insurer examination (“IE”) assessments as required in s. 44 of the Schedule. The respondent sent notices to the applicant’s legal representative on June 13, 2019 and January 2, 2020 that the applicant was required to attend IE assessments, but the applicant’s representative replied on June 26, 2019 and January 22, 2020 that this was not possible as the applicant was in China. These responses provided no further explanation for non-attendance, nor offer any opportunity to reschedule at a time when the applicant would be in Canada. As a result, I do not fault the respondent for insufficient medical evidence in response to the applicant’s claims. I also accept that this has resulted in prejudice to the respondent, as claimed in the respondent’s written submissions, as the applicant’s absence prevented the insurer from fully responding to this application.
16For the reasons outlined above, I find that the applicant has sustained predominantly minor injuries as a result of the accident and remains subject to the MIG. The applicant has not presented sufficient evidence to demonstrate that he is suffering from chronic pain or a psychological impairment.
The Treatment Plans and Claim Forms
17Given that the treatment plans and expense claims have been proposed outside of the MIG and its $3,500.00 limit on treatment, and given that the MIG has been exhausted, no additional analysis is required to determine if these plans and expenses are reasonable and necessary.
The Non-Earner Benefit
18I am not persuaded that the applicant has demonstrated that he qualifies for an NEB pursuant to the Schedule.
19Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of an accident, if the insured person suffers a complete inability to carry on a normal life within 104 weeks of the accident taking place. Section 3(7)(a) of the Schedule defines “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance 2009 ONCA 391, which generally requires a comparison of the applicant’s pre-accident and post-accident lifestyle and activities.
20The applicant has not followed these principles in his submissions, providing limited evidence comparing his activities before and after the subject accident. The Disability Certificate/OCF-3 completed by Qi Xu, physiotherapist, dated November 16, 2018, the CNRs of Dr. Dong, and the treatment plan of Dr. Palantzas note the applicant’s post-accident difficulties with personal care, vehicular anxiety, basic household chores, and cognitive tasks like remembering errands and planning, but they do not compare and contrast what he was doing before and after the accident. As a result, they do not provide enough information for me to assess the applicant’s pre- and post-accident activities and whether he suffers from a complete inability to carry on a normal life as required by the Schedule.
21The applicant’s position is not bolstered through his citation of prior Tribunal decisions. Bissessar v. State Farm Mutual Automobile Insurance Company (FSCO A11-000204, 2013 ONFSCDRS 165), Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, and Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, all refer to how an applicant can qualify for an NEB if he cannot engage in pre-accident activities. But there is a dearth of information before me with regard to the applicant’s pre-accident activities of daily living. I cannot determine the applicant’s post-accident level of engagement with said activities without substantive information regarding what he did in these activities before the accident.
22Further, I agree with the respondent’s argument that the applicant’s numerous trips to China after the accident support that the applicant does not suffer from a complete inability to carry on a normal life and therefore does not meet the NEB test as outlined in the Schedule. As noted above, the applicant was in China in 2019 and 2020 when the respondent attempted to schedule IE assessments. The CNRs of Dr. Dong note that the applicant was in China in March of 2021, as well, when the applicant consulted his family physician by telephone with regard to health issues unrelated to the accident.
23I also agree with the respondent’s argument that it was prejudiced in its ability to respond to the NEB claim. As detailed above, the applicant did not attend IE assessments requested by the respondent. The applicant also did not respond to requests for information within 10 days of a notice letter dated December 31, 2018, pursuant to s. 33 of the Schedule. The applicant did not send a complete requested Activities of Daily Living/OCF-12 until May 2, 2019. This OCF-12 includes no added details with regard to the applicant’s injuries, how these injuries have caused his impairments, or his activities after the accident compared to his activities before the accident. Boxes are checked off indicating that he is unable, partially able, or able to perform only with assistance essentially every activity on the form post-accident, but I find that this holds limited weight in the absence of supporting medical analysis. The medical evidence does not support the assertion of such a complete level of impairment that prevents the applicant from doing all household chores and making meals without assistance. Dr. Dong does not record such significant issues in his CNRs, and as already detailed, the only x-rays taken reveal only slight degenerative disc disease, unrelated to the accident.
24For the reasons detailed above, I find that the applicant has not demonstrated that he suffers from a complete inability to carry on a normal life as a result of the accident. Therefore, he is not entitled to an NEB.
Interest
25As there are no overdue benefits, it follows that the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
CONCLUSION AND ORDER
26I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.
ii. Given that the applicant’s injuries are minor and the $3,500.00 MIG limit applies, the treatment plan and the expenses in dispute are not payable.
iii. The applicant is not suffering from an inability to carry on a normal life as a result of the accident, and is not entitled to an NEB.
iv. Given that there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
27The application is dismissed.
Released: March 13, 2023
Brett Todd Vice-Chair