Jeong v. Certas Home and Auto Insurance Company, 2023 CanLII 19897

Citation: Jeong v. Certas Home and Auto Insurance Company, 2023 CanLII 19897

Licence Appeal Tribunal File Number: 21-000919/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:

Soohyun Jeong

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Richard Warr

APPEARANCES:

For the Applicant: Jae Hyon Cho, Counsel

For the Respondent: Jaskarn Pabla, Counsel

HEARD: By way of written submissions

OVERVIEW

1Soohyun Jeong, the applicant, was involved in an automobile accident on October 18, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. 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”)?

ii. If the applicant’s injuries are not subject to the MIG,

a. Is the applicant entitled to a medical benefit in the amount of $200.00 ($1,800.00 less $1,600.00 approved) for chiropractic services recommended by Sigma Chiropractic and Rehab Clinic, as per OCF-18 submitted on May 8, 2019 and denied on May 16, 2019?

b. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 for a psychiatry/GP medical assessment, recommended by Direct Comfort Ltd., as per OCF-18 submitted on January 4, 2021 and denied on January 8, 2021?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant sustained injuries or impairments that would warrant her removal from the MIG. The applicant is entitled to payment, in part, of the disputed treatment and assessment plans. The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

The applicant should be removed from the Minor Injury Guideline

Minor Injury Guideline (MIG)

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”

5An insured person 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 condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The applicant sustained predominantly minor injuries in the accident

6I find that the applicant sustained injuries that fall within the definition of “minor” in section 3(1) of the Schedule. At the time of the accident, the applicant was transported from the scene by ambulance to a local hospital emergency department. The applicant submits that she experienced back, neck, hip, leg, and shoulder pain immediately and, being pregnant at the time, fear and shock out of concern for her pregnancy. She was released from the hospital the same day and attended a clinic the following day.

7The applicant had three visits with Dr. J.H. Cho at the clinic on October 19, 2018, October 22, 2018 and November 19, 2018. At each of these visits the applicant complained of pain in her back, neck, and legs as a result of the accident. Dr. Cho noted at each visit that she had normal range of motion in her neck and lumbar region. Dr. Cho diagnosed her at each visit with low back and muscle strain and recommended physiotherapy. At the October 19, 2018 visit, Dr. Cho noted that the obstetric ultrasound was normal.

8In an addendum attached to the OCF-1 completed on October 26, 2018, the applicant lists her injuries as lower back pain, right pelvis pain, and headache.

9The applicant did not provide any further medical evidence in relation to her accident-related injuries beyond the clinical notes and records (CNRs) of Dr. Cho referenced above.

10I find the injuries diagnosed by Dr. Cho are minor as defined by the Schedule, and therefore removal from the MIG is not warranted based on the injuries the applicant sustained in the accident.

The applicant sustained psychological disorders warranting her removal from the MIG

11I find that the applicant has demonstrated, on a balance of probabilities, that she developed accident-related symptoms which have led to psychological diagnoses that warrant her removal from the MIG.

12I am persuaded by the psychiatric assessment conducted on February 5, 2021 and corresponding report dated February 12, 2021. The assessment was conducted by psychotherapist D. Ross, a licensed Clinical Social Worker and Psychotherapist, who was supervised by Dr. A Seif, a physician and psychiatrist registered with the College of Physicians and Surgeons of Ontario.

13After the clinical interview and a battery of psychometric testing, the assessors diagnosed the applicant with:

i. Major depressive disorder, single episode, in the severe range with anxious distress

ii. Somatic symptom disorder, with predominant pain, in the persistent range, at severe levels

iii. Specific phobia, situational type – vehicular.

14The assessors concluded that the applicant’s psychological conditions are directly related to the accident and these diagnoses would remove her from the MIG.

15The respondent submits that this report should not be relied upon as the assessment took place 842 days post-accident. The respondent also submits that there is no other evidence from any healthcare provider to substantiate these psychological diagnoses. The respondent has not provided any expert report to refute the findings of the psychiatric assessment conducted by psychotherapist Ross and Dr. Seif.

16I disagree with the respondent and find that that the assessors are qualified to make the diagnoses that they did and that they conducted a thorough examination and psychometric testing which led them to their conclusions. The absence of corroborating evidence does not cause me to find this report unreliable.

17Therefore, I find that the accident-related psychological disorders that the applicant has been diagnosed with warrant her removal from the MIG.

The applicant has chronic pain warranting her removal from the MIG

18I also find that the applicant, on a balance of probabilities, has demonstrated that she has chronic pain and that this chronic pain causes her functional impairments that would warrant her removal from the MIG.

19I am persuaded by the Chronic Pain assessment and corresponding report conducted by Dr. J. Jianfar, a licensed physician, and Dr. H. Mohsini, a licensed chiropractor. Their assessment was completed February 10, 2021 and their report is dated February 18, 2021.

20The chronic pain assessment consisted of a clinical interview of the applicant and a physical examination including a series of physical tests. The applicant reported to the assessors that her neck pain was 5/10 in intensity and made worse by certain neck movements, sitting, certain postures and completing daily activities. She described her low back pain as a 7/10 in intensity and aggravated by daily activities including caregiving. She also complained of disturbed sleep causing fatigue and anxiety.

21Following the assessment the applicant was diagnosed with:

i. Chronic pain of the cervical spine

ii. Chronic pain of the lumbar and lumbosacral spine and left hip

iii. Difficulty sleeping, memory and concentration problems

iv. Reported stress and anxiety/driving and possible other emotional conditions/symptoms requiring appropriate intervention(s).

22The assessors also concluded that the applicant is unable to perform activities of daily living, including her care-giving duties and housekeeping activities in the same way she could pre-accident. The applicant reported to the assessors that she experiences difficulties with activities that involve lifting, bending, stooping, twisting and prolonged standing or sitting.

23The respondent submits that the chronic pain assessment report should not be relied upon as the assessors did not engage with the criteria in the American Medical Associations 6th Edition, Guidelines for Chronic Pain (AMA Guides). The respondent submits that the applicant has not demonstrated that she has met three of the six criteria listed in the AMA Guides. While the AMA Guides can be helpful in making a determination of chronic pain in the absence of a diagnosis of chronic pain, the chronic pain assessment report relied upon by the applicant makes a diagnosis of chronic pain.

24The respondent has not submitted any evidence to refute the findings of the applicant’s chronic pain assessors.

25I am persuaded by the chronic pain assessment report which found that “to a reasonable degree of medical certainty, there is a probable causal relationship between the current complaints and the subject accident.” The applicant should be removed from the MIG as she has developed chronic pain as a result of the subject accident.

The treatment plans in dispute

medical benefit in the amount of $200.00

26The respondent submits that the treatment plan dated May 8, 2019 for chiropractic services proposed by Sigma Chiropractic and Rehab Clinic in the amount of $200.00 ($1,800.00 less $1,600.00 approved) is not payable because there is no outstanding balance at Sigma. In support of this, the respondent has submitted into evidence a letter from Sigma which indicates that the applicant’s last treatment date was July 10, 2019 and that there was no outstanding balance. The applicant has not submitted any evidence to the contrary.

27I agree with the respondent that this $200.00 is not payable as the treatment provider has indicated that there are no monies owing.

cost of an examination in the amount of $2,200.00

28To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

29I find that the treatment plan dated January 4, 2021 in the amount of $2,200.00 for a psychiatry/GP medical assessment, proposed by Direct Comfort Ltd., is reasonable and necessary.

30I have found that the applicant sustained psychological disorders and chronic pain that impairs her ability to function. This plan was for an assessment of the applicant’s psychological condition and chronic pain resulting from the subject accident. The assessment is a reasonable and necessary first step for the applicant to begin to address her ongoing accident-related complaints.

31The respondent submits that the gap between the date of the accident and the dates of the assessments conducted in relation to this plan is significant and brings into question the cause of the chronic pain. I am not presented with any evidence of another cause for the applicant’s injuries or impairments. I find the length of time is indicative of chronic pain as the definition provided by the assessors, in their report, is “unremitting pain lasting greater than six months” or simply as "pain that extends beyond an expected period of healing."

32The respondent submits that the applicant incurred the cost of the psychiatric assessment portion of this treatment and assessment plan prior to a proper explanation of the denial. This portion involved a cost of $545.00 which the respondent paid with interest for a total payment of $571.87.

33I find that the applicant is entitled to the unapproved portion of the January 4, 2021 treatment plan proposed by Direct Comfort Ltd., in the amount of $1,628.13 ($2,200.00 less $571.87 paid).

Interest

34As I have found benefits are payable, it follows that interest applies on any overdue payment of benefits.

ORDER

35I make the following order:

i. The applicant’s injuries are not predominantly minor, and she should not be subject to the $3,500.00 limitation of the MIG.

ii. The applicant is not entitled to the $200.00 ($1,800.00 less $1,600.00 approved) for chiropractic services proposed by Sigma Chiropractic and Rehab Clinic, as per OCF-18 dated May 8, 2019.

iii. The applicant is entitled to $1,628.13 ($2,200.00 less $571.87 paid) for a psychiatry/GP medical assessment, proposed by Direct Comfort Ltd., as per OCF-18 dated January 4, 2021.

iv. The applicant is entitled to interest on any overdue payment of benefits.