Citation: Him v. AIG Insurance, 2023 ONLAT 21-006937/AABS

Licence Appeal Tribunal File Number: 21-006937/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:

Patty Lee Him

Applicant

and

AIG Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Gjergji Laloshi, Paralegal

For the Respondent:

Jeffrey Crannie, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Patty Lee Him (“PLH”), the applicant, was involved in an automobile accident on February 5, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). PLH was denied benefits by the respondent, AIG, 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 PLH’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 (the “MIG”)?

ii. Is the medical benefit in the amount of $1,995.00 for psychological treatment, proposed by Dr. Mrahar in a treatment plan (OCF-18) denied on June 6, 2019, reasonable and necessary?

iii. Is the cost of examination expense in the amount of $2,938.00 for a psychological assessment, proposed by Allied Med in an OCF-18 denied on November 15, 2019, reasonable and necessary?

iv. Is the medical benefit in the amount of $2,925.60 for chiropractic treatment, proposed by Scarborough Medical in an OCF-18 denied on June 11, 2019, reasonable and necessary?

v. Is the cost of examination expense in the amount of $3,550.50 for a physiatry assessment, proposed by Allied Med in an OCF-18 denied on November 15, 2019, reasonable and necessary?

vi. Is AIG liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to PLH?

vii. Is PLH entitled to interest on any overdue payment of benefits?

RESULT

3I find that PLH has not demonstrated that her accident-related injuries warrant removal from the MIG. Accordingly, the disputed OCF-18s are not reasonable and necessary. Interest and an award are not payable.

ANALYSIS

Applicability of the MIG

4Section 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 in accordance with the MIG. 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.” 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 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.

5An insured may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). In this case, the evidence does not support a removal from the MIG as a result of psychological impairment, which, as the evidence indicated, was not a result of the accident. In PLH’s case she argues that she should be removed from the MIG due to an accident-related psychological impairment.

Does PLH require treatment beyond the MIG limit?

6I find that PLH suffered minor physical injuries as a result of the accident.

7PLH was injured in an accident on February 5, 2019. She was a pedestrian crossed the road when an SUV made a right turn and stuck PLH on her left side. She experienced pain and aches to the left hip and left forearm. Following the accident, PLH was taken to Toronto Western Hospital Emergency, where x-rays were conducted of the left pelvis/hip and left elbow and forearm, which revealed no acute bony injury. PLH was discharged with a diagnosis of a soft tissue injury to the left arm and advised to follow up with her family physician.

8On February 7, 2019, PLH saw her family physician, Dr. Rahim, who noted that the hospital x-rays revealed no fractures. Dr. Rahim diagnosed musculoskeletal injuries of the neck, back, left upper and lower limbs.

9Despite PLH’s extensive references to the clinical notes and records (“CNRs”) of Downtown Toronto Doctors and the neurology report of Dr. Wong, she has failed to demonstrate that her physical injuries are not predominantly minor. While I can appreciate that the dynamics of the accident may have been significant, I do not find the medical evidence relied upon has demonstrated that her impairments fall outside the MIG. At paragraph 56 of her submissions, she states that, “there is overwhelming evidence in support of removing PLH from the MIG and granting her access to funds for medical and rehabilitation benefits she desperately requires.” I disagree.

10The Disability Certificates (OCF-3’s), dated February 13, 2019 and February 11, 2020, further do not support that PLH’s injuries are not predominantly minor. For example, the February 2019 OCF-3, indicate a duration of more than 12 weeks, however, the chiropractor that completed the form, noted injuries that are captured within the MIG. The February 2020 OCF-3, notes a duration of 9-12 weeks, indicating that there has been some level of recovery since the initial OCF-3 and the accident. In addition, the February 2020 OCF-3, completed by a physiotherapist, also noted injuries that would be defined as minor.

11AIG relies on the June 17, 2019 physiatry report of s. 44 insurer examination assessor, Dr. Tam in support of its determination that PLH suffered minor injuries. In the report, Dr. Tam notes that PLH’s physical injuries and diagnoses are captured with the MIG. Dr. Tam noted PLH’s pre-existing conditions (hypertension, high cholesterol and an irregular heart rate) and that she had no pre-existing physical conditions. Dr. Tam concluded that PLH’s pre-existing conditions do not prevent PLH from achieving maximal recovery within the MIG limits.

12While there is reference to numerous medical documents, I find that PLH has not persuasively demonstrated that this evidence establishes that her physical injuries are not predominantly minor.

13In addition, although some of the records indicate that she suffers from chronic pain, there is no evidence of a referral to a specialist or pain clinic. Further, she has not demonstrated that suffers from functional limitations as a result of chronic pain. The mere mention of a “chronic” condition is not enough to demonstrate that her injuries require treatment beyond the MIG limits.

14The Tribunal has used the AMA Guides criteria as an interpretive tool for chronic pain claims. In order to establish that she suffers from accident-related chronic pain, PLH must establish that she meets three of the six criteria, as required. The six criteria being―evidence of dependence on prescription drugs; excessive dependence on health care providers or family; withdrawal from social, work or recreational activities because of pain; that her physical capacity is insufficient to pursue work or that she has developed any psychosocial sequelae.

15While it is not required, PLH did not engage in an analysis of the six criteria under the AMA Guides to demonstrate that she suffers from chronic pain that has resulted in functional limitations. Such an analysis is helpful in understanding the extent of one’s accident-related injuries and the impact on function.

16Further, it is well-settled that it is not the role of the trier of fact to piece together evidence and figure out the case before them. The onus is on the parties to clearly direct the trier of fact to the evidence relevant to the issues in dispute. Accordingly, the moving party should direct me to any and all persuasive, objective or otherwise, evidence that meets the test of establishing the claims as reasonable and necessary. Where this evidentiary burden fails to be met, a claim for benefits will not be successful.

17For these reasons, I find that PLH has not established, on a balance of probabilities, that her physical injuries require treatment beyond the MIG limits. Further, as the limit has not yet been exhausted (approximately $891.04 remains under the limit), PLH may seek treatment up to the MIG limit.

Did PLH suffer psychological injuries beyond mere sequelae?

18I find she did not.

19In support of her claims to address the reasonableness and necessity of the psychological assessment and treatment plans PLH refers to the March 18, 2019 OCF-18 of psychologist, Dr. Mrahar, who diagnosed PLH with adjustment disorder, with mixed anxiety and depressed mood, and driving phobia. PLH also refers to the records of Dr. Rahim, noting complaints about ongoing issues with sleep, fatigue, daily headaches, low mood, feeling anxious, driving anxiety, depression and decreased concentration. Lastly, she relies on the notes from psychiatrist Dr. Pun, who’s impression was that PLH was suffering with anxiety.

20Similarly, to the evidence she relies on for her physical injuries, PLH refers to several medical records from her visits to the Downtown Toronto Doctors clinic (which includes Dr. Pun’s reports). However, the records contain no discussion as to whether she suffered psychological sequelae as a result of the accident, or if she suffered any psychological impairment that is not defined by the MIG. Further, Dr. Pun’s notes do not contain objective results that support that a psychological assessment is reasonable and necessary.

21At a March 2, 2021 visit with Dr. Pun, PLH complained of anxiety. Dr. Pun’s observations were that PLH had depression and increased anxiety. At a March 12, 2021 consultation, PLH advised her mood was better, but she was still having issues with anxiety. Dr. Pun’s impression was that PLH was suffering with depression. During a March 26, 2021 visit with Dr. Pun, PLH advised that her mood had been better, but she was still having issues with anxiety, again Dr. Pun’s impression was that PLH was suffering with depression. Dr. Pun made similar notes on April 16, 2021, May 4, 2021, and June 11, 2021.

22In response, AIG relies on the result of its May 22, 2019 s. 44 psychological assessment with Dr. Talebizadeh, who opined that PLH does not meet diagnostic criteria for any psychological disorders. Dr. Talebizadeh concluded that PLH’s psychological impairments fall within the definition of a minor injury and her current psychological complaints are treatable within the MIG.

23While I am sympathetic to the nature of the accident, and the impact it has had, in order to make a successful claim for treatment, it must be clearly demonstrated that PLH suffered more than just psychological sequelae as a result of the accident. Much of her evidence referenced in her submissions, show a trending improvement in terms of her self-reporting to her treating practitioners regarding her anxiety. I also note that some of the treatment PLH has received to date, has been provided through OHIP-funded treatment providers. This is evidenced through her submissions indicating that she received treatment through an OHIP-funded psychiatrist.

24Although there is evidence of her treatment with Dr. Pun, the issue in dispute is whether a psychological assessment is reasonable and necessary. PLH submits that she “would like the funds and possibility to request therapy from her preferred practitioners at her preferred frequency”, without dealing with potential delays through the OHIP system and limited to which treatment providers she can incur services through. I do not find this to be persuasive, or objective evidence that supports that the psychological assessment is reasonable and necessary. In addition, aside from the OCF-18, there is no recommendation from a treating physician that supports that a follow up assessment could be needed.

25Further, I note in the November 6, 2019 OCF-18 proposing a psychological assessment by Dr. Keeling, the injury and sequelae identified by Dr. Keeling is a headache. This is not an impairment that would require a psychological assessment and is considered sequelae of a minor injury. Lastly, Dr. Pun has been providing treatment to PLH since October 29, 2019, which is prior to Dr. Keeling’s OCF-18. There is no discussion as to why a psychological assessment is reasonable and necessary when PLH is receiving regular treatment from Dr. Pun.

26I find her submissions fail to clearly demonstrate that any psychological impairments require treatment beyond the MIG. Accordingly, I find that PLH suffered psychological impairments that can be treated within the MIG limits. Further, as there remains just under $900.00 under the MIG limit, PLH may seek treatment up to the MIG limits. Lastly, the totality of the disputed OCF-18s exceeds the amount available under the MIG.

27Although PLH was provided with an opportunity to refute AIG’s claims by way of written reply submissions, she chose not to. Accordingly, I see no reason to interfere with AIG’s determinations.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

29Having confirmed that there remains a balance under the MIG limits, PLH may seek treatment up to the MIG limits, with interest payable in accordance with s. 51 of the Schedule.

Award

30The applicant sought an award under s. 10 of Reg. 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.

31PLH has not established that the disputed OCF-18s are reasonable and necessary. As such, AIG cannot have been found to have unreasonably withheld or delayed payment of benefits. An award is not payable.

ORDER

32PLH suffered predominantly minor injuries that are treatable within the MIG limits. As there is an amount remaining under the MIG, she may be able to seek treatment up to the MIG limit, with interest payable in accordance with s. 51 of the Schedule.