21-002500/AABS

Licence Appeal Tribunal File Number: 21-002500/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:

Gui Zhen Ma

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Emily Schatzker, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant, Gui Zhen Ma, was involved in an automobile accident on March 12, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The respondent, Co-operators General Insurance Company (“Co-operators”), categorized Ms. Ma’s injuries as being minor and denied her benefits. Ms. Ma applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) to dispute the denials.

ISSUES

2The issues in dispute are as follows:

a. Are Ms. Ma’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”)?

b. Is Ms. Ma entitled to chiropractic treatment plans in the amount of $3,666.96 submitted on March 19, 2019, and $4,540.08 submitted on June 26, 2019?

c. Is Ms. Ma entitled to a psychological assessment submitted on June 7, 2019, an in-home assessment submitted on March 19, 2019, and a concussion assessment submitted on March 20, 2019, in the amount of $2,200.00 for each assessment proposed by Total Recovery Rehabilitation?

d. Is Ms. Ma entitled to a psychological treatment plan in the amount of $3,981.88 submitted on June 7, 2019?

e. Is Ms. Ma entitled to a chronic pain assessment in the amount of $3,000.00 submitted on February 3, 2021?

f. Is Ms. Ma entitled to a non-earner benefit in the amount of $185.00 per week from April 10, 2019, until March 12, 2021?

g. Is Co-operators liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to Ms. Ma?

h. Is Ms. Ma entitled to interest on the overdue payment of benefits?

Results

3Ms. Ma’s accident-related injuries are considered minor. She is not entitled to any of the disputed benefits. Since no benefits are owed, she is not entitled to interest or award.

ANALYSIS

Ms. Ma IS IN THE MINOR INJURY GUIDELINE

4I find Ms. Ma’s injuries are minor and there is no compelling evidence to support that any of her pre-existing injuries prevent her from recovering within the minor injury funding limit. I also find that she does not have any other injuries from the accident that would remove her from the MIG. Simply put, there are large gaps in her medical evidence that make it impossible to determine, on a balance of probabilities, if Ms. Ma suffered from anything but minor injuries.

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. 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.”

6Once the injuries are classified as minor, the injured person is limited to treatment in accordance with the MIG. 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 would prevent maximal recovery if they were 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, as these types of injuries do not fall within the definition of minor injury. In all cases, the burden of proof lies with the applicant.

7Ms. Ma claims her injuries should not be defined as minor because she has chronic pain and psychological injuries as a result of the accident. She also submits that pre-existing injuries prevent her from recovering within the minor injury funding limits. She relies on:

i. her family doctor’s records which document pre-existing injuries,

ii. a psychiatric report dated May 12, 2019, conducted by a psychotherapist diagnosing her with major depressive disorder with anxious distress and travelling phobia,

iii. treating practitioner records from Total Recovery which she attended for approximately three months after the accident,

iv. a chronic pain assessment report dated January 22, 2021 diagnosing her with chronic pain and alleging functional limitations, and

v. a concussion assessment dated March 6, 2021 that determined she is still suffering from post-concussive symptoms from the accident.

8Co-operators argue that Ms. Ma has not met her burden of proof because there are large gaps in her medical evidence, and she reports similar pain complaints to what she had pre-accident. Finally, it argues that her reports to assessors are inconsistent and therefore unreliable.

9The main issue in this hearing is whether Ms. Ma has produced enough medical records before and after the accident to determine what injuries may have been caused by it. I find she has not. Ms. Ma produced medical records two years before the accident, in 2017, which demonstrate she was suffering from numerous health conditions, including back impairments that eventually led to surgery. This led to a referral to a chronic pain specialist a few years before the accident. The pre-accident records demonstrate that she also suffered from depression, insomnia, deep vein thrombosis, osteophytes, and fibromyalgia. She had been taking various medications to alleviate her pain, insomnia, and depression for several years.

10Ms. Ma claims in her submissions that her back pain subsided in 2018, yet I have no records to support it. There is a one-year gap in her medical records between 2017 and 2018. Ms. Ma then produced two months of medical records just prior to the accident. From those limited records, I find it difficult to understand the status of her pre-existing conditions. Therefore, I can only assume that before the accident she was still suffering from the same conditions listed above.

11After the accident, I have a few months of medical records, then a 20-month gap, and then about eight months of records. Without consistent and reliable records showing the accident as the cause of the diagnosis, I find that I cannot conclude she suffers from greater impairments other than minor injuries.

12Ms. Ma relies on 35 diagnosed impairments by Dr. Palantzas, a chiropractor from Total Recovery Rehabilitation, and three months of clinical notes from that facility to prove her injuries are more than just minor. I give little weight to these records and the injuries diagnosed by Dr. Palantzas because the doctor was unaware of her pre-accident history. Both the clinical notes and treatment plans did not detail any pre-accident injuries or conditions for which she had a significant medical history. I also give little weight to the diagnosis made by the chiropractor because they were not consistent with the other medical records. For example, Dr. Palantzas diagnosed Ms. Ma with an injury to the eye and orbit, abdomen, knee, ribs, lower leg, and findings of radiculopathy. The injuries listed were not reported at the hospital or to the family doctor following the accident. Therefore, I cannot conclude that Ms. Ma suffered from most of the injuries listed in the chiropractic records.

13Ms. Ma also relies on a concussion diagnosis by Dr. Hubbard, an otolaryngologist, to prove her injuries are not minor. I am not convinced that the accident caused a concussion for three reasons. First, the diagnosis was made based on the self-reports of Ms. Ma that she experienced vertigo and tinnitus immediately following the accident and continues to experience concussion-like symptoms at the time of the assessment. I give little weight to the doctor’s diagnosis because the doctor reviewed minimal post-accident clinical notes and records and relied on the applicant’s self-reports two years after the accident. Secondly, Ms. Ma had another head injury a few weeks after the accident when she fell and hit her head on a railing. The incident is noted in the family doctor’s records on April 9, 2019. Dr. Hubbard was not aware of this second head injury at the time of his assessment. Thirdly, the symptoms relayed to Dr. Hubbard that occurred post-accident were not reported to the hospital or to the family doctor. The family doctor’s records indicate that Ms. Ma reported that she felt dizzy or possibly had vertigo when she took Zoloft, a medication she was prescribed. For these reasons, I assign little weight to the report and diagnosis of Dr. Hubbard.

14I find Ms. Ma does not have a psychiatric impairment from the accident. Ms. Ma had a pre-accident history of depression and insomnia. Since I am missing one year of Ms. Ma’s pre-accident medical records and approximately 20 months of post-accident medical records, it is impossible to know whether her previous psychiatric illness was impacted by the accident. I give little weight to Ms. Ma’s psychiatric report because the psychotherapist was unaware of her pre-accident medical history. The report states that Ms. Ma denied any significant pre-accident issues with her health, major surgeries, or any significant mental health issues. These statements are at odds with the family doctor’s records that detail a pre-accident back surgery, other health concerns, and a history of mental illness.

15I find that on a balance of probabilities, Ms. Ma does not have chronic pain as a result of the accident. Ms. Ma claims she had pre-accident pain issues, but they had improved in the year before the accident. Since there is no evidence to prove her submissions, I cannot find in her favour. The records show pain complaints, a referral made to a physiatrist and a diagnosis of fibromyalgia two years before the accident. Since there are no medical records to corroborate Ms. Ma’s submissions, I must conclude that she was still suffering from pre-accident pain conditions prior to the accident. I also give little weight to the chronic pain diagnosis made two years after the accident. Since there are large gaps in Ms. Ma’s medical records, and considering her pre-accident medical history, it is difficult to establish whether her chronic pain issues were a result of or made worse by the accident.

16Lastly, I find that Ms. Ma’s pre-accident injuries do not prevent her from achieving maximum medical recovery if subjected to the MIG limits. In order to be removed from the MIG because of pre-existing impairments, Ms. Ma must prove various requirements in accordance with s. 18(2). One, she has a documented pre-accident condition that was exacerbated or affected by the accident, and two, a health practitioner must determine and provide compelling information that she will not be able to achieve maximal medical recovery being subjected to the MIG limits for therapy. Again, since I am missing the pre-accident medical records from one year before the accident, I can only rely on the evidence contained two years before the accident in 2017. The records show a previous surgery, disc herniation in the lumbar spine and a history of fibromyalgia. Further, she had been taking various medications to alleviate her pain, insomnia, and depression for several years. Since, I find Ms. Ma suffered from whiplash, headaches, and bruising from her head injury. These injuries were new and appear to not have affected or worsened her pre-accident conditions. I find there is no evidence that supports that her chronic pain condition worsened as a result of the accident.

17Because of the large gaps in her medical history, I find there is not enough evidence to determine Ms. Ma’s post-accident injuries. Without an understanding of what occurred during those periods, it is difficult to assume that the accident was responsible for the post-accident diagnoses. Therefore, I can only rely on the diagnoses made immediately after the accident at the hospital and by the family physician. I give more weight to the diagnoses made by the family doctor over Ms. Ma’s independent assessors because her family doctor would have a better understanding of how her post-accident medical condition may have changed.

18As a result, I find that Ms. Ma experienced whiplash (neck strain), and, bruising and headaches from a head injury from the accident. These were the injuries diagnosed at the hospital and by Ms. Ma’s family doctor immediately following the accident. These injuries fall within the definition of minor injuries.

MS. MA IS NOT ENTITLED TO THE TREATMENT PLANS

19To prove entitlement to a treatment and assessment plan for medical and rehabilitation benefits 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.

20Ms. Ma claims entitlement to two chiropractic treatment plans and one for psychiatric treatment. Ms. Ma submits she is entitled to the treatment plans because she reported improvement in her physical and psychological injuries because of therapy. Unfortunately, Ms. Ma has not pointed me to the evidence in support of that submission. She also claims that the denial letters in response to the treatment plans fail to provide medical and other reasons, a statutory obligation for Co-operators. Ms. Ma failed to explain how the denial letters are deficient in comparison to the obligations set out in the Schedule. I have reviewed the denial letters from Co-operators and I do not find anything improper. The notices contain information regarding the treatment plan and the medical and other reasons for denying the benefit. It is not my role to shift through pages of evidence to make the case for Ms. Ma. Her submissions should be clear in explaining why she meets the test for treatment or how Co-operators failed to meet its statutory obligations. Therefore, on a balance of probabilities, Ms. Ma has not demonstrated how the treatment plans are reasonable or necessary or how the denial letters were deficient. She has not met her onus in demonstrating that the treatment plans are reasonable and necessary.

21Ms. Ma claims entitlement to four assessments, in-home attendant care, psychiatric, chronic pain and concussion assessment. Ms. Ma did not provide any submissions to explain why these assessments are reasonable or necessary. The submissions center around the alleged failings of Co-operators. She claims that Co-operators failed to assess Ms. Ma and approve treatment plans. Again, submissions in the absence of evidence, and its application to the law, and/or criticizing the failings of the insurance company are not enough to meet the test for a benefit. The applicant must demonstrate with evidence how the treatment plans are reasonable and necessary considering the injuries sustained in the accident. Since I find that Ms. Ma’s injuries were minor, as per s. 14 of the Schedule, she is not entitled to attendant care benefits. Therefore, I find an in-home assessment would not be reasonable or necessary. Since I found that Ms. Ma does not suffer from a psychiatric impairment, concussion or chronic pain from the accident, I find that an assessment for those purposes would not be reasonable or necessary.

MS. MA IS NOT ENTITLED TO A NON-EARNER BENEFIT (“NEB”)

22Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment because of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

23Ms. Ma claims entitlement to a NEB and relies on a Disability Certificate dated March 18, 2019, which checked off the box that she meets the test for the benefit. She also relies on two Activities of Normal Life forms dated March 14, 2019, and June 13, 2019. The form lists tasks and abilities one might complete on a daily basis. For example: bathing, dressing, walking, climbing, shopping, and cleaning. The form asks the injured person to certify whether they were capable, partially capable or incapable of completing that task before the accident and compare it to their capabilities after the accident. If the person is having difficulties completing the task, the form asks the person to explain why. Ms. Ma certified in these forms that she was capable before the accident of completing most daily tasks by herself but she either needs help or is incapable of completing the tasks post-accident.

24Co-operators’ argue that the Disability Certificate should be given little weight since it was written by the same chiropractor who diagnosed Ms. Ma with 35 injuries from the accident, including many that were never reported or diagnosed by any other doctor after the accident. Co-operators also argues that the Activities of Normal Living forms are unreliable. It argues Ms. Ma certified in that form that she could complete housework before the accident, which contradicts what she reported to her family doctor in 2017 that she was incapable of housework.

25Ms. Ma is not entitled to a NEB. I afford little weight to the Disability Certificate because Dr. Palantzas concluded that Ms. Ma met the NEB test because she suffered from 35 various injuries as a result of the accident. As explained above, I give little weight to those diagnoses since many of the listed injuries were not reported to the hospital or the family doctor following the accident. I also give little weight to Ms. Ma’s self-reports on the Activities of Normal Life forms because what is recorded in them contradicts what Ms. Ma reported to her family doctor. Ms. Ma has not produced any other evidence to support her position that she can no longer carry on with her activities of daily living because of any accident-related impairment. Therefore, Ma. Ma has not met her onus in establishing entitlement to a NEB.

ORDER

26Ms. Ma’s injuries are within the MIG. She is not entitled to any of the benefits. Since no benefits are owed, she is not entitled to interest or award.