20-012422/AABS

Licence Appeal Tribunal File Number: 20-012422/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:

Di Xu

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Teresa Walsh

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Jessica Mahabir, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an accident on April 26, 2019. She sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2Certas denied the benefits in dispute on the basis that the applicant sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are in dispute:

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 in the MIG?

ii. Is the applicant entitled to $4,355.12 for physiotherapy services proposed by Total Recovery Rehab in a treatment plan dated February 10, 2020?

iii. Is the applicant entitled to $2,200.00 for the cost of a psychological assessment proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated August 21, 2019?

iv. Is the applicant entitled to $3,981.88 for psychological services proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated April 6, 2021?

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

vi. Is the applicant entitled to an award under s. 10 of Regulation 664?

RESULT

4The applicant has not met her onus of proving that her accident-related injuries warrant removal form the MIG. As approved benefit payments under the MIG limits have essentially been exhausted, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans. Further, as there are no benefits owing, no interest nor award is payable. The application is dismissed.

ANALYSIS

The applicant has not demonstrated that removal from the MIG is warranted

5The applicant has not established that she suffers from chronic pain with a functional impairment, or a psychological impairment, warranting removal from the 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”.

7Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond this cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of accident-related chronic pain with a functional impairment or a psychological impairment.

8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

9The applicant submits that she should be removed from the MIG on two grounds:

i. chronic lower back and neck pain preventing her from engaging in workplace tasks or activities of daily living; and

ii. psychological impairments.

10The applicant points to entries in family physician and service provider records to support her argument that she complained post-accident of: persistent lower back pain worsened by sitting and walking and making it difficult to carry heavy items; and neck pain associated with dizziness and nausea, worsened with head movements. The applicant states that these ongoing physical injuries forced her to resign from her job and have impacted her ability to engage in household tasks and recreational activities.

11A psychology pre-screening report and psychological assessment are heavily relied on to support the applicant’s submission that since the accident, she has continually experienced anxiety, depression, sleep disturbances, a driving-related phobia and social isolation.

12The respondent counters that there is no compelling, objective evidence that the applicant suffers from accident-related chronic back or neck pain. In support of its position, the respondent notes that family physician records produced start ten months after the accident and that the few back and neck complaints included in these records are indicated to be sporadic, of limited duration and not specifically related to the accident.

13As also noted by the respondent, the applicant has not produced any clinical records of service provider Total Recovery Rehab for physiotherapy, massage and other treatments received since the accident. The respondent argues that these records are necessary to address the frequency and severity of back and neck complaints alleged by the applicant. Further, the respondent references the lack of any prescription summaries, pre- or post-accident x-ray, MRI, CT or other diagnostic imaging records of the applicant’s neck or spine, employment records or other evidence as to whether, and if so why, the applicant left her job.

14The respondent further submits that there is no ongoing and compelling objective evidence of the applicant having suffered any accident-related psychological impairments.

15Upon careful review of all records produced, I agree with the respondent that there is no objective, compelling evidence of the applicant experiencing ongoing back or neck pain accompanied by a functional impairment and related to the accident necessary to establish a chronic pain finding.

16Family physician appointments in 2020 and 2021 focus on the applicant’s gynecological and thyroid issues. Indeed, the applicant’s first mention of back pain to her family physician (in February 2020), is in connection with a possible gynecological cause; there is no mention of the accident. In family physician and endocrinology records for this period, references to the applicant’s short-lived neck pain are potentially linked to hyperthyroidism.

17In January 2022, nearly three years post-accident, the applicant had a phone consultation with a new family physician. The applicant noted the accident and for the first time talked of “chronic back pain”. However, there is no diagnosis of chronic back pain before, during or after this consultation.

18There are no mentions in treating physician records of the applicant receiving any prescription medications for accident-related physical impairments; references are to folic acid and vitamins only.

19Likewise, there is scant reference in treating physician records to the applicant having any psychological impairments following the accident. The one reference I found was in April 2021, where the family physician describes the applicant having had “some anxiety” since the accident. The family physician goes on to note that there is no other record of the accident in the applicant’s chart.

20The applicant saw clinical psychologists from Somatic Assessments and Treatment Clinic on two occasions. In August 2019 she saw Dr Maneet Bhatia for a psychological pre-screening and in March 2021 she had a virtual psychological assessment overseen by Dr. Sharleen McDowall. As a result of the March 2021 assessment, Dr. McDowall diagnosed the applicant as having a Major Depressive Disorder with Anxious Distress as well as Specific Phobia (Travel) due to the accident.

21I give little weight to the reports of Dr. Bhatia and Dr. McDowall for the following reasons:

i. Although they were prepared two years apart, detailed descriptions of the applicant’s physical and psychological complaints are similar and, in many cases identical, in the two reports. This is so despite the March 2021 report referencing information having been obtained “through a direct interview with the client”. I find that significant sections of Dr. Bhatia’s report were simply copied and pasted into Dr. McDowall’s report, undermining the accuracy of the information or related psychological findings.

ii. All physical and psychological complaint details and testing included in the reports are based on subjective information supplied by the applicant. There is no follow-up questioning or critical assessment of this subjective information.

iii. Neither Dr. Bhatia nor Dr. McDowall refer to any objective medical records or employment records reviewed for the applicant.

iv. Dr. Bhatia and Dr. McDowall do not address any potential non-accident-related causes for the applicant’s reported psychological complaints.

v. Similar descriptions to the applicant’s reported psychological presentation and impairments seen in these reports are completely absent from family physician records and an endocrinology consultation from the same period.

22In sum, the applicant has failed to prove on a balance of probabilities that, as a result of the accident, she suffers from chronic pain with a functional impairment or a psychological impairment, entitling her to treatment outside the MIG.

No need to address reasonableness and necessity of disputed treatment plans

23Sections 14 and 15 of the Schedule provide that the insurer shall pay medical and rehabilitation benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical and rehabilitation benefits sought in a treatment plan are a reasonable and necessary expense.

24The applicant bears the onus of establishing entitlement to the proposed treatment plan by proving it is reasonable and necessary on a balance of probabilities.

25The disputed benefits propose treatment and an assessment outside the MIG framework to which I have determined the applicant is not entitled. As her impairments are within the MIG and as the $3,500.00 maximum for medical benefits available under the MIG has essentially been exhausted, I need not determine if the disputed treatment plans are reasonable and necessary.

Interest

26As there are no medical benefits owing, no interest is payable.

Award

27The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no benefits are payable, the applicant is not entitled to an award.

ORDER

28For the reasons outlined above, I find that:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the MIG.

ii. The applicant is not entitled to the medical benefits or the cost of the psychological assessment sought in the treatment plans. Accordingly, she is not entitled to interest.

iii. The applicant is not entitled to any award under s. 10 of Regulation 664.

iv. The application is dismissed.